A number of the general protections provisions aim to protect employees from adverse action taken because of a particular proscribed reason. For example, s.340 of the Fair Work Act 2009 says:
- A person must not take adverse action against another person:
- because the other person:
- has a workplace right; or
- has, or has not, exercised a workplace right; or
- proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
- to prevent the exercise of a workplace right by the other person. [Emphasis added]
Thus a general protections dispute occurs when it is alleged that adverse action is taken – or when a threat to take adverse action occurs – because a person has one of these rights, exercises or does not exercise such a right, or proposes or does not propose to exercise such a right.
Other general protections provisions which use ‘because’ are:
The use of the word ‘because’ in these provisions means that the central question in a general protections dispute, once it has been established that adverse action was taken, will be ‘Why was the adverse action taken?’.
This is a question of fact which must be answered in the light of all the facts established in the proceeding. It will involve a consideration of the reason or reasons of the person who made the decision to take the adverse action and surrounding circumstances including those of the employee at the time the action was taken.
A question of fact is when the Fair Work Commission must decide what the facts of the case are based on the evidence. Often a question of fact arises where there are two or more versions of events presented.
This means the Commission must determine which one, if either, of the circumstances is more likely to have occurred on the balance of probabilities.
Unless the adverse action was taken ‘because’ of a proscribed reason, then there will be no breach of the general protections provisions.
For example, if adverse action is taken against a person who is exercising a workplace right, there will only be a breach of the general protections provisions (s.340) if the exercise of the workplace right was the reason why (or a reason why) the adverse action was taken. The workplace right need only be a reason, not the only reason, for the action. If the action was taken solely for another reason – such as serious misconduct at work – then there will be no breach.
For instance, if adverse action is taken against a pregnant employee, there will be no breach of the general protections provisions (s.351) unless the employee’s pregnancy was the reason (or a reason) for the taking of the adverse action. Pregnancy does not by itself establish an immunity from adverse action.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (which concerned disciplinary action taken against a union representative who sent a communication to fellow employees) the High Court noted that the attribute or activity protected by Part 3-1 does not have to be completely disassociated with the adverse action. The question is whether those protected attributes or activities were an operative factor in the decision to take the action.
In example 1 above, the employee has been dismissed (adverse action) because they had taken a period of temporary leave, which is a protected right (reason).
In example 2 above, the employee has been dismissed (adverse action) during a period of temporary leave, which is a protected right. However the decision to dismiss was not because the employee was on leave – so the (reason) is missing.
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 360 deals with the situation where there are multiple reasons for the taking of adverse action. If one of the reasons for taking adverse action was a proscribed reason, then there will be a breach of the applicable general protections provision (where the provision is a ‘because’ provision). The proscribed reason does not have to be the sole or dominant reason. However the reason must be a substantial and operative reason.
Other general protections provisions are not based on adverse action being taken ‘because’ of a particular proscribed reason. Some provisions contain a direct prohibition on certain types of action; for example s.344 prohibits employers from exerting undue influence or pressure on employees to do certain things. Some provisions depend upon the existence of a certain state of mind in the person who took the action; for example, s.345 prohibits the making of false and misleading representations about certain matters to certain persons ‘knowingly or recklessly’. Other provisions prohibit certain actions taken with a particular intent, for example s.348 prohibits organising, taking, or threatening to organise or take any action against another person with ‘intent’ to coerce that person or a third person to do certain things.
Whether a person made a representation knowingly can be determined by an enquiry into what the person knew about the statement in question. A reckless representation is a representation made by someone who is careless or indifferent as to its truth.
Where a provision prohibits a person taking action with the intent of bringing about a certain result, a person’s intent may be established by evidence of their knowledge of the circumstances which gives the act its character. If such knowledge is established, the person will have breached the provision even if the person believed that the act was lawful. Actual knowledge is necessary, but a person who deliberately refrains from making enquiries because that person knows the probable consequences of the enquiries may be found to have constructive knowledge of those consequences, which may be regarded as equivalent to actual knowledge of the consequences.
 ibid., ‒, .
 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549 (7 September 2012) at para. 62.
 Board of Bendigo Regional Institute of Technical and Further Education v Barclay 248 CLR 549 (7 September 2012) at paras 102, 104, per Gummow and Hayne JJ.