Employment Law Guide

Author: Paul Moorhouse and Gerard Boyce

This Employment Law Guide has commentary and precedents for advisors in the employment relationship. This includes determining employment rights & obligations, how to enforce them & defending claims.

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6.1 What is unlawful dismissal, workplace rights and freedom of association

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6. Protection against unlawful dismissal, the protection of workplace rights and freedom of association

6.1  What is unlawful dismissal, workplace rights and freedom of association

Unlawful dismissal, workplace rights and freedom of association are all grouped together in this chapter because of the way in which the Fair Work Act 2009 groups them together as part of the ‘general protections’ set out in Part 3-1 of the Act. 

Unlawful dismissal

‘Unlawful dismissal’ refers to a dismissal for a reason that is prohibited by statute. 

It can be contrasted with ‘unfair dismissals’, which are dismissals that are unfair in all of the circumstances, regardless of whether they are for a prohibited reason.  Unfair dismissals are discussed in Chapter 7.  The Fair Work Act 2009 provides for completely different court proceedings, and remedies, in relation to unlawful dismissals as compared with unfair dismissals (see section 7.2).

Under the Fair Work Act 2009, most Australian employees obtain protection from unlawful dismissal as part of the ‘general protections’ against dismissal and other adverse action which are set out in Part 3-1 of the Act.  In addition, there are separate protections against unlawful termination in Part 6-4 of the Act, but an application relying on these additional protections is only available if the dismissal is not prohibited by the ‘general protections’ (for further discussion of the interaction between these two sources of protection against unlawful dismissal, see section 6.2).

Workplace rights

'Workplace rights' is used in the Fair Work Act 2009, and in this Guide, to refer to certain rights of employees, employers, prospective employees, prospective employers, independent contractors and others in connection with their workplace participation which are protected by the Fair Work Act 2009 (see section 6.4.3).  That protection is found in Part 3-1 of the Act, as part of the ‘general protections’.

Freedom of association

‘Freedom of association’ refers to the entitlement of employees, employers and others to join unions and employer associations, to participate in the lawful industrial activities of those bodies, and to be represented by those bodies in relation to workplace matters.  In the Fair Work Act 2009 the concept is extended to include the right to not join, not participate and not be represented.  Protection in relation to those matters (see section 6.4.4) is also found in Part 3-1 of the Act, as part of the ‘general protections’.

© Copyright Paul Moorhouse and Gerard Boyce, 2010, Sydney. All rights reserved.Last Updated: 24/05/2012

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