Whether you can bring a claim under the Fair Work Act 2009 (Cth) will depend on whether you are an employee. Factors such as whether you are involved in the exertive functions of management and administration of the company will determine your eligibility. All employees are protected from adverse action being taken against them for an unlawful reason and from discrimination under the Fair Work Act 2009 (Cth).
Whether you can bring an unfair dismissal claim will also depend on your remuneration. As of 1 July 2020, you need to be earning less than $153,600 to bring an unfair dismissal claim. In the alternative, either a modern award or enterprise agreement must apply to your employment. However, this is fairly unusual for an executive employee.
Employees can be involved in the contravention of civil penalty provisions of the Fair Work Act 2009 (Cth) with Directors, senior managers, senior employees and human resources managers particularly susceptible. Common areas of civil penalty provisions are breaches of modern awards, adverse action, underpayments, and sham contracting arrangements. A person is involved in the contravention if they:
- Aided, abetted, counselled or procured the contravention;
- Induced the contravention, whether by threats, promises or otherwise;
- Have been directly or indirectly knowingly concerned in or party to the contravention; or
- Have considered with others to effect the contravention.
An executive could be held to have been involved in, for example, underpayments of staff if they are aware of the underpayments. If an employee is found to have been involved in the contravention, that person will be taken to have also contravention. This means they risk the imposition of a penalty. If you think your employer is contravening provisions of the Fair Work Act 2009 (Cth) you should remove yourself from the situation, and contact the Fair Work Ombudsman.