General Protections (Adverse Action)

What are the general protections?

The Industrial Relations Act 2016 (Qld) (the Act) provides for a number of general protections at work.

There are three broad categories of protections: workplace rights, freedom of association and protection from workplace discrimination.

Adverse action is an action taken against a person that violates their protections.

An adverse action could include:

  • being dismissed from employment
  • refusing to employ a prospective employee
  • injuring the employee in their employment
  • altering an employee’s position (e.g. loss of promotional opportunity, changes to duties or seniority)
  • discrimination between the employee and other employees.

If an employee’s (or prospective employee’s) general protections are impacted by adverse action (as specified under the Act) the employee may have a claim before the Queensland Industrial Relations Commission (QIRC).

Workplace rights

A workplace right is:

  • a right under an industrial law (e.g. the Act) or instrument (e.g. an award or a certified agreement)
  • the ability to be part of a proceeding (e.g. the ability to lodge or support a grievance)
  • the ability to make a complaint or inquiry (under an industrial law or instrument or about employment).

Freedom of association

Freedom of association is the ability or choice to take part in (or not take part in) industrial activities. For example, becoming a member of a union or organising an activity for a union or its members.

Discrimination

Protection from discrimination is the protection from adverse action being taken against an employee because of a discriminatory reason. For example; sex, relationship status, pregnancy, parental status, religious belief etc.

How are employees protected?

Employees are protected from actual action taken or not taken as well as action threatened.

If an employee has experienced adverse action, the employee or the employee’s union can apply to the QIRC to have the dispute heard.

How long do I have to apply?

If the adverse action is that the employee has been dismissed, the application must be made within 21 days after the dismissal took effect. Further periods may apply in exceptional circumstances.

For adverse action other than dismissal, an application must be made to the QIRC within 6 years of the action occurring.

Can I have legal representation?

The Act maintains the QIRC as a lay jurisdiction, however for general protections matters parties may be legally represented if all parties consent or if the QIRC grants leave to be represented.

Further information about legal representation can be found on the QIRC website.

Remedies

The Act provides for a broad range of remedies depending on the adverse action taken and the circumstances of the action. Remedies may include reinstatement (in the case of dismissal) and compensation.

Further information

For specific information, contact your employer’s Human Resources or Industrial Relations area or your union.

Note: Claims cannot be made for an action which occurred prior to the commencement of the general protections provisions on 1 March 2017.

Queensland Industrial Relations Framework

A comprehensive review of Queensland's industrial relations laws resulted in the government adopting all 68 of the review’s recommendations which will promote a fair and balanced industrial relations framework. A significant majority of the recommendations will be given effect though the Industrial Relations Act 2016 (the Act). The Act received assent on 9 December 2016 following its successful passage through the Queensland Parliament on 30 November 2016. Most provisions of the Act commenced on 1 March 2017.

The Act provides a framework for the conduct of industrial relations within the State’s industrial relations jurisdiction that is fair and balanced and supports the delivery of high-quality services, economic prosperity and social justice for Queenslanders. The defining features of the State industrial relations system are:

  1. a set of minimum employment conditions and standards
  2. collective bargaining as a cornerstone for setting wages and conditions including good faith bargaining and other consultation
  3. requirements to promote consultation between employers and employees
  4. a set of individual rights to fair treatment
  5. effective, transparent and accountable governance and reporting obligations for all registered industrial organisations and employer associations
  6. the Queensland Industrial Relations Commission (QIRC) as a strong and effective independent umpire.

The Act covers employers and employees to whom the federal Fair Work Act 2009 (Cth) does not apply. Generally this means employers and employees of the Queensland government and local governments are covered by the Queensland Act.