Coverage for general protections

See Fair Work Act ss.338–339

The general protections provisions protect persons who are:

• employees (including prospective employees)
• employers (including prospective employers)
• independent contractors (including prospective independent contractors)
• a person (the principal) who has entered into a contract for services with an independent contractor (including a principal who proposes to enter into a contract), and
• an industrial association (including an officer or member of an industrial association)

in respect of the following action:

• action taken by a constitutionally-covered entity
• action that affects the activities, functions, relationships or business of a constitutionally-covered entity (or is capable of affecting or is taken with intent to affect)
• action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally-covered entity to take, or not take, particular action in relation to another person (or threatening to do so)
• action taken in a Territory or a Commonwealth place
• action taken by:
  • a trade and commerce employer, or
  • a Territory employer

that affects, is capable of affecting or is taken with intent to affect an employee of the employer, or

• action taken by an employee of:
  • a trade and commerce employer, or
  • a Territory employer

that affects, is capable of affecting or is taken with intent to affect the employee’s employer.[1]

The general protections provisions also have effect as if any reference to an employer or employee was a reference to a national system employer or employee.[2]

Related information

• What is a constitutionally-covered entity?
• What is a Territory or a Commonwealth place?
• What is a trade and commerce employer?
• What is a Territory employer?
• What is a national system employer?

The term person is used throughout the general protections provisions.

A person can be defined as a separate legal entity, recognised by the law as having rights and obligations.

There are 2 categories of person:

• a natural person (a human being), and
• an artificial person (an entity to which the law attributes personality – such as a body corporate).[3]

The terms employer and employee have their ordinary meaning for the purpose of general protections provisions. Other sections of the Fair Work Act 2009 give specific definitions to these terms (‘national system employer’ and ‘national system employee’) which are not applicable to the general protections provisions.[4]

An employer is a person who engages another to work under a contract of employment. An employee is a person who works under a contract of employment for an employer, rather than under some other kind of contract for work.

Officers and enlisted members of the Australian Defence Force (Army, Navy and RAAF) are not employees because no civil contract of any kind is created with the Crown or the Commonwealth as a result of the appointment of an officer or the enlistment of an enlisted member.[5]

Prospective means ‘of or in the future’ or ‘potential; likely; expected’.[6] Prospective employees are not confined to persons who an employer has formed an intention to employ, and includes persons whose employment is being considered.[7]

However the expression prospective employee ‘… implies a substantial degree of proximity such as to exclude persons who might yet apply for employment or be invited to consider employment with a particular employer but at the relevant time were not yet negotiating in relation to such a possibility’.[8]

A prospective employee is protected from a prospective employer:

• refusing to employ them, or
• discriminating against them in the terms and conditions on which employment is offered.

A prospective employee is taken to have the workplace rights he or she would have if he or she were actually employed in the prospective employment by the prospective employer.[9]

Example

If a person was refused employment because they were a member of a union, or was offered a lower rate of pay because of their gender, then that person may seek a remedy under the general protections provisions of the Fair Work Act.

NOT a prospective employee

Vij v Cordina Chicken Farms Pty Ltd

Vij v Cordina Chicken Farms Pty Ltd (2012) 222 IR 91 (15 June 2012).

The applicant, a labour hire employee, argued that he was a prospective employee of the entity utilising the hired labour (the respondent) by virtue of the fact that the respondent had held out the potential for direct employment in circumstances where a person performed well.

The Federal Magistrates Court rejected this argument and found that the applicant was not a prospective employee of the respondent and therefore the adverse action claim (which related to discrimination) must fail.

It was found that although the inducement of permanent employment might have been held out by the respondent to its contractors’ employees, there was no evidence that the applicant had been offered such employment or even invited to apply for it.

An independent contractor is covered by the general protections provisions of the Fair Work Act.

What is an independent contractor?

An independent contractor undertakes to produce a given result, but is not, in the actual execution of the work, under the order or control of the person for whom it is done.[10] The fundamental characteristic of an independent contractor (as compared to an employee) is that the independent contractor provides a service to the principal while working in their own business.[11]

In the general protections provisions of the Fair Work Act, the term ‘independent contractor’ is not confined to persons providing services in the form of labour which would otherwise be performed by an employee, and extends to any person (including large corporations) carrying on the business of a contractor that provides services, irrespective of scale, including where any number of persons are employed to carry on the business’s functions.[12]

Prospective independent contractors

The general protections provisions apply to a person (the principal) proposing to enter into a contract for services with an independent contractor who takes action against the independent contractor or a person employed or engaged by the independent contractor.[13] The provisions thereby protect prospective independent contractors and their employees and other persons engaged by them. They cover not just independent contractors who are proposed to be engaged, but also potential independent contractors whose engagement is under consideration or in prospect.[14]

A labour hire worker, whether an employee or independent contractor, is covered by the general protections provisions of the Fair Work Act.

A labour hire worker is someone who enters into a work contract with a labour hire agency. The labour hire agency has a commercial contract to supply labour to a host firm. The worker performs work for the host firm. The host firm pays the labour hire agency, and the labour hire agency then pays the worker. An example of this is a temporary position working in an office during a particularly busy time for the host firm.

Persons properly characterised as volunteers will not be covered by the general protections provisions of the Fair Work Act.

A volunteer is ‘someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain’.[15]

The Fair Work Commission considers volunteerism as an arrangement generally motivated by altruism, rather than for remuneration or private gain. Therefore, the commitments shared between the parties are usually considered moral in nature, rather than legal.[16] Payment unrelated to hours of work or the actual performance of work does not of itself imply that a worker is an employee.[17] In these circumstances, the payment can more aptly be described as an ‘honorarium’ or gift.[18]

For example, a worker may receive board and lodgings[19] or reimbursements for expenses[20] and still be considered a volunteer.