The Law Handbook 2024

1072 Section 11: Rights, activism and fair treatment at work • does not engage in, or has not at any time engaged in or proposed to not engage in, industrial activity. Part 3-1 of the FW Act also provides protection against adverse action taken because a person is: • an officer or member of an industrial association; • not an officer or member of an industrial association; or • taking or not taking industrial action as defined by section 347 of the FW Act. Engaging in industrial action is defined by the FW Act to include: • organising or promoting lawful activity for an industrial association; • representing or advancing the views, claims or interests of an industrial association; • taking part in industrial action (s 347). Other protections in the Fair Work Act Prevention of dismissal due to discrimination The FW Act also provides for the formerly named ‘unlawful terminations’ (Part 3-1). The FW Act prohibits discrimination on the grounds of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (s 351). The FW Act prevents termination of employment or any other adverse action on any of these grounds. Prevention of dismissal due to illness or injury Section 352 of the FWAct prevents the dismissal of an employee on the grounds of the employee’s temporary absence for illness or injury. Only termination is prohibited under this section, and it does not cover any other potential forms of adverse action. Remedies for breaches of the general protections Procedures for applying for a remedy for a breach of the general protections The FW Act provides a procedural regime for any proceedings alleging a breach of the general protections. Applications alleging a breach of the general protections may be commenced by the person affected by the contravention or by an industrial association (if the industrial association is affected by the contravention, or the person affected is a member, or is entitled to be a member, of the industrial association). Time limits Under section 366 of the FW Act, an application for a remedy for a dismissal in breach of the general protections must be made to the FWC within 21 days after the dismissal or such further period as the FWC allows. Like an extension of time limits with an unfair dismissal application, this time limit can be extended. The matters that can be taken into account for an extension of time to lodge an application are in s 366(2) of the FW Act. Notably, to receive an extension, the applicant must show that there were exceptional circumstances. For an application for a remedy for a breach of the general protections provisions where no dismissal has occurred, the time limit is six years. Fair Work Commission Under section 365 of the FW Act (read with s 370), a person alleging a contravention of Part 3-1 must first apply to the FWC for it to deal with the dispute before applying to a court (unless an interim injunction is sought). If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, it will issue a certificate (s 368). This certificate must be received before a general protections application can be made to a court. Section 369 of the FWAct provides that the parties may consent to the FWC dealing with the general protections application by arbitration. Notification of the parties’ consent to the FWC arbitrating the matter must be given to the FWC within 14 days of the certificate being issued. Court application As stated above, a certificate from the FWC must be received before an application can be made to a court in relation to an alleged breach of the general protections. A general protections court application must be made within 14 days of the FWC issuing the certificate (s 370 FW Act).