What is a workplace right?
Workplace rights can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements. The Fair Work Act 2009 (Cth) sets out the following categories of workplace rights:
- entitlements, roles and responsibilities under a workplace law, workplace instrument or order of an industrial body;
- participation in processes or proceedings under workplace laws or instruments; and
- the making of complaints or inquiries (subject to certain pre-conditions being satisfied) [s 341].
The workplace rights protections prohibit taking adverse action against a person because they have a workplace right or because they do (or do not) exercise their workplace right.
What is adverse action?
The general protections provisions protect people from adverse action. This is a key definition that intersects with a number of the protections.
What constitutes adverse action in a particular case depends on the nature of the relationship between the relevant persons. For example, adverse action taken by an employer against an employee includes dismissal, discrimination, refusing to employ a person, or prejudicially altering the position of the person.
The definition covers certain conduct of employers, employees, industrial associations, independent contractors and principals. It also extends to protect prospective employees from adverse action in certain circumstances [s 342].
What are industrial activities?
The industrial activities protections encompass a person’s freedom to be or not be a member or officer of an industrial association and participation or non-participation in certain industrial activities (for example, refusal to take part in industrial action). The protections prevent adverse action being taken against a person in connection with these industrial activities. The protections also prohibit incentives in relation to a decision to become or not become a member of an industrial association [s 350].
Coercion, misrepresentation and undue influence or pressure
Coercion and misrepresentation in relation to workplace rights and industrial activities is also prohibited. For example:
- industrial associations are prohibited from organising industrial action against an employer because the employer refuses to comply with an unlawful request made by the industrial association; and
- employees are protected from undue influence or pressure being exerted by their employer in relation to a decision by the employee to agree to or terminate an individual flexibility arrangement [ss 344, 348-349].
Employees and prospective employees are also protected from workplace discrimination on the grounds of race, colour, sex, sexual preference, age, disability, marital status, pregnancy, family or carer’s responsibilities, religion, political opinion, national extraction or social origin. The general protections prohibit all adverse action (victimisation, refusing to employ, etc.) not just dismissal, on discriminatory grounds.
The unlawful termination protections for discriminatory reasons (e.g. race, colour sex) have been retained for non-national system employers, however the protection is limited to protection from dismissal.
The general protections also prohibit a person from discriminating against an employer for reasons including, that employees of the employer are covered, or are not covered, by a particular type of workplace instrument (for example, coverage by a modern award instead of an enterprise agreement).
In addition, there are also protections to prohibit coercion of a person to make or not make certain employment or management decisions (for example, to allocate particular duties to a particular employee).
A employer is further prohibited from taking adverse action against a casual employee for making a request for casual conversion (a National Employment Standard under Division 4A of the Fair Work Act 2009 (Cth)).
There are also protections against sham contracting which relate to circumstances where employers try to disguise genuine employment arrangements as independent contracting arrangements [ss 357-359].
To see if you should be an independent contractor or employee, see the Fair Work Ombudsman’s website: www.fairwork.gov.au.
What happens if I believe these protections are breached?
Where a person alleges a contravention of the general protections, the Fair Work Commission is able to hold a conference to attempt to resolve the matter. In cases involving dismissal, the conference is mandatory. In all other cases, participation in a Fair Work Commission conference is voluntary and a person can elect to proceed directly to court instead.
Where a person is dismissed from employment, a Fair Work Commission application to hold a conference must be made within 21 days of a dismissal. If the matter cannot be resolved at the conference, the person is able to apply to the Fair Work Division of the Federal Court or Division 2 of the Federal Circuit and Family Court for a remedy.
Available remedies include monetary penalties, injunctions, compensation, and reinstatement in the case of dismissal. Costs will only be awarded if the proceedings were instituted vexatiously, the costs were incurred due an unreasonable act by the other party, or one party unreasonably refused to participate in the Fair Work Commission’s proceedings.