Over the course of 2020, Melbourne Workplace Senior Associate Emma Goodwin, the co-author of the July 2019 textbook General Protections Under the Fair Work Act and a keen observer of developments in this area of law, has published articles in the Employment Law Bulletin exploring two highly significant Full Federal Court decisions in this area, and another providing an overview of developments in relation to general protections associated with the advent of COVID-19. We summarise these developments below.

Broadly, the general protections set down in Part 3-1 contain a range of protections for employees, prospective employees, independent contractors, principals and employers against mistreatment in relation to their workplace rights; certain protected attributes (such as disability, race and sex); union activity and membership; and sham contracting (essentially, misclassifying an employee as an independent contractor). 

There have been a number of cases considering these provisions since their enactment in July 2009, but not all of the legal issues have been resolved.

Consideration of the scope of the prohibition on disability discrimination

Section 351 of the FW Act prohibits adverse action being taken against employees, or prospective employees, in relation to (among other attributes) their physical or mental disability. The scope of this protection has been uncertain for some time.

In October 2019, the first detailed Full Federal Court case of Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 considered this issue in the context of the termination of employment of an employee who allegedly had a mental illness. It was (broadly) held that:

• The definition of disability in dedicated disability discrimination legislation may be relevant to a section 351 mental or physical disability claim.
• A manifestation of a disability (for example, inability to walk, for a paraplegic) is part of the disability, but the consequences of the disability (for example, inability to attend for work due to illness) are not.
• Under section 351, a claim of discrimination can be defended on the basis that the employee, or prospective employee, could not perform the inherent requirements of the job. The Full Federal Court concluded that, in order to avail itself of that defence, the employer needed to show that it held a belief (whether the belief was an accurate one, or was honest but mistaken) that the employee was unable or unwilling to perform the inherent requirements of the position.

The judgments in Western Union v Robinson are explored in greater depth here.

Clarification of the boundaries of what may constitute a complaint

Section 340 prohibits adverse action being taken against persons in relation to their workplace rights. Section 341(1)(c)(ii) defines one of those workplace rights as being that the person 'is able to make a complaint or inquiry . . . if the person is an employee—in relation to his or her employment'.

Precisely what types of complaint or inquiry are protected by section 340 has been the subject of much debate in the courts. The decision of PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, which considered allegations by Mr King that, among other things, he had been terminated because of his complaints of breaches of his contract of employment and of the Australian Consumer Law, provides the most detailed clarification to date.

In short, it was held that:

• To attract the protection, a complaint must be underpinned by a source of 'entitlement or right', such as a contract of employment, industrial instrument or legislation. The Court left open the possibility of there being other sources of such an 'entitlement or right'. The majority (Snaden J dissenting) concluded that there does not to be an entitlement or right to complain, but there does need to be an entitlement or right to complain about.
• Such a complaint must also be made genuinely and in good faith (for example, a spurious complaint made solely for the purpose of attracting the section 340 protection would not qualify).

The judgments in PIA Mortgage Services v King are explored in greater depth here.

Developments in the context of COVID-19

COVID-19 has touched most areas of life in 2020, and the general protections are no exception. There have been many relevant statutory and industrial instrument amendments in which the important role of Part 3-1 has been made apparent, including :

• Amendments to the FW Act to allow for the JobKeeper scheme and associated flexibilities were attended by qualifying provisions prohibiting the taking of adverse action against employees taking steps such as refusing to agree to a request that they take annual leave at half pay.
• Many amendments made by the Fair Work Commission to industrial awards to allow for flexibilities associated with COVID-19 were expressly qualified by the fact that the general protections would operate in respect of them.
• Amendments to the Privacy Act 1988 (Cth) in respect of the Federal Government's COVIDSafe App made it clear that adverse action could not be taken in respect of, for example, an employee's refusal to use the App.

The developments in this area are explored in greater depth in the article No quarantine for workplace rights.

Please note that there have been further legislative amendments in relation to the JobKeeper scheme since the 'COVID-19 Developments' piece was written and many award variations have been extended beyond the initial cut off dates recorded in the article published in the Employment Law Bulletin.