When the Fair Work Act was unveiled it took a while for the effects of the new general protections provisions to become known. Passed with the best of intentions, Labor's general protections provisions were intended to ensure that employers did not violate the rights of their employees, or punish them for enforcing their rights.
Unfortunately the provisions have created a lawyer's picnic in the workplace. Take radio presenter Mel Greig's case against Southern Cross Austereo, owner of 2day FM, where Greig is employed.
Greig, along with her co-host Michael Christian, were responsible for the prank call made to a London Hospital where the Duchess of Cambridge was being treated for morning sickness in December last year. Three days later, Jacintha Saldanha, the nurse that spoke to Greig and Christian, committed suicide, citing the Melbourne DJs in her decision to end her own life.
Greig has now filed a general protections claim alleging her employer failed to provide a safe workplace. Meanwhile, her co-host has since returned to work and received the station's 'Next Top Jock' award.
While we should have sympathy for Greig, who has received counselling and remains on paid sick leave, it doesn't necessarily follow that she ought to receive compensation.
General protections laws prohibit employers from taking adverse actions against the employee where the employee is enforcing a 'workplace right.' An obvious example would be where a worker is demoted for becoming a union member.
But recently we've seen a steady increase in the scope of claims for employee protections, each of which increase business costs and create workplaces fraught with legal complexities.
Thanks to the poor construction of the laws, general protections claims can be difficult for employers to defend. They carry a reverse onus of proof, meaning that once the employee has established an action and can point to a workplace right, the employer must prove that their actions were not for a 'prohibited' reason. Normally the employee would need to demonstrate this link.
As the old adage goes, hard cases make bad law. With the new bullying legislation soon to be introduced, the balance of workplace protections could become unworkable.
Alexander Philipatos is a Policy Analyst at The Centre for Independent Studies.
Home > Commentary > Opinion > Workplace rights taken to the extreme
Workplace rights taken to the extreme
Unfortunately the provisions have created a lawyer's picnic in the workplace. Take radio presenter Mel Greig's case against Southern Cross Austereo, owner of 2day FM, where Greig is employed.
Greig, along with her co-host Michael Christian, were responsible for the prank call made to a London Hospital where the Duchess of Cambridge was being treated for morning sickness in December last year. Three days later, Jacintha Saldanha, the nurse that spoke to Greig and Christian, committed suicide, citing the Melbourne DJs in her decision to end her own life.
Greig has now filed a general protections claim alleging her employer failed to provide a safe workplace. Meanwhile, her co-host has since returned to work and received the station's 'Next Top Jock' award.
While we should have sympathy for Greig, who has received counselling and remains on paid sick leave, it doesn't necessarily follow that she ought to receive compensation.
General protections laws prohibit employers from taking adverse actions against the employee where the employee is enforcing a 'workplace right.' An obvious example would be where a worker is demoted for becoming a union member.
But recently we've seen a steady increase in the scope of claims for employee protections, each of which increase business costs and create workplaces fraught with legal complexities.
Thanks to the poor construction of the laws, general protections claims can be difficult for employers to defend. They carry a reverse onus of proof, meaning that once the employee has established an action and can point to a workplace right, the employer must prove that their actions were not for a 'prohibited' reason. Normally the employee would need to demonstrate this link.
As the old adage goes, hard cases make bad law. With the new bullying legislation soon to be introduced, the balance of workplace protections could become unworkable.
Alexander Philipatos is a Policy Analyst at The Centre for Independent Studies.
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