Meaning of workplace right

See Fair Work Act s.341

A person has a workplace right if the person:

• is entitled to the benefit of a workplace law, workplace instrument or an order made by an industrial body
• has a role or responsibility under a workplace law, workplace instrument or order made by an industrial body
• is able to initiate or participate in a process or proceedings under a workplace law or instrument
• is able to make a complaint or inquiry to a person or body with capacity to seek compliance with a workplace law or instrument, or
• is able to make a complaint or inquiry in relation to his or her employment.

A workplace law is a law that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).[1]

Workers’ compensation laws are directed to matters that both regulate and define the employer/employee relationship and therefore fall within the definition of ‘workplace law’.[2]

The fact that a law regulates other relationships as well as the employment relationship does not take it outside the definition of workplace law.[3] The Equal Opportunity Act has been found to be a workplace law.[4]

The Privacy Act has been found not to be a workplace law as it does not regulate the relationship between employers and employees.[5]

A particular provision within an Act or regulation could be said to regulate the relationship between employers and employees, even though the Act or the regulations as a whole do not.[6]

A workplace law must be a statute law (including delegated legislation). It does not generally include rights arising under contracts of employment or other common law rights.[7]

A workplace instrument is an instrument that is made under, or recognised by a workplace law and concerns the relationships between employers and employees.[8]

The term ‘workplace instrument’ does not apply to the contract of employment itself.[9]

Industrial body means:

• the Fair Work Commission
• a court or commission (however described) performing or exercising, under an industrial law, functions and powers corresponding to those conferred on the Fair Work Commission by the Fair Work Act 2009, or
• a court or commission (however described) performing or exercising, under a workplace law, functions and powers corresponding to those conferred on the Fair Work Commission by the Fair Work (Registered Organisations) Act 2009.[10]

Other bodies that can be considered ‘industrial bodies’ are:

• the Federal Court
• the Federal Circuit and Family Court
• an eligible State or Territory court (meaning one of the following):
  • a district, county or local court
  • a magistrates court
  • the South Australian Employment Tribunal, and
  • the Industrial Court of New South Wales
• a State or Territory commission (meaning one of the following):
  • the Industrial Relations Commission of New South Wales
  • the Queensland Industrial Relations Commission
  • the South Australian Employment Tribunal
  • the Western Australian Industrial Relations Commission, and
  • the Tasmanian Industrial Commission.

It has been accepted that the role of a bargaining representative is a role or responsibility under a workplace law.[11]

An obligation to ensure workplace safety as a Health and Safety Officer is also a role or responsibility under a workplace law.[12]

A person exercises a workplace right where they make a complaint or inquiry in relation to their employment.

The Fair Work Act does not restrict the person or body to whom such an inquiry or complaint could be directed. It can include situations where an employee makes an inquiry or complaint to their employer.[14] Seeking legal advice in relation to a person’s employment has also been held to fall within the meaning of making an inquiry.[15]

Although the words ‘is able to’ are taken to have a broad meaning, in order for the complaint or inquiry to be considered a workplace right, the complaint or inquiry must concern and be confined to the subject employee’s employment. ‘[T]he employee’s ability to “complain or inquire” [is] in respect of matters personal to the employee as governed by that person’s contractual arrangements and or the statutory framework.’[16]

In Alam v National Australia Bank Limited[17]  the Full Court of the Federal Court upheld the approach taken by the Full Court in Cigarette & Gift Warehouse Pty Ltd v Whelan[18]  to the effect that:

• there must be a relationship between the subject matter of the employee’s complaint and the employee’s employment
• the subject of the employee’s complaint must be founded on a source of entitlement or right (such as in an employment contract, award, enterprise agreement or legislation), and
• it is not necessary for the ability to make a complaint or inquiry to itself have an instrumental source. This means the employee does not have to identify a grievance procedure or some other right to bring a complaint in their employment contract, award, enterprise agreement or legislation in order to attract the protections in Part 3-1 Division 3 of the Fair Work Act.[19] It will be sufficient if the complaint or inquiry relates to subject matter for which the employment contract makes provision. [20]

An illustrative example

is provided in the Explanatory Memorandum:[26]

Freddy works part-time at a petrol station. He believes he is not being paid the correct award rate for a console operator. He writes a letter of complaint to the Australian Competition and Consumer Commission (ACCC) as he mistakenly believes that it is able to investigate wage underpayments. Freddy tells his manager about the letter. Following this, his hours for the next fortnight are cut in half. While the complaint would not be covered by subparagraph 341(1)(c)(i) as the ACCC does not have the capacity under a workplace law to seek compliance with the applicable award, Freddy would still have exercised a workplace right because he has made a complaint regarding his employment (subparagraph 341(1)(c)(ii)).

Each of the following is a process or proceedings under a workplace law or instrument:

• a conference or hearing held by the Fair Work Commission (the Commission)
• court proceedings under a workplace law or instrument
• protected industrial action
• making, varying or terminating an enterprise agreement
• appointing (or terminating the appointment of) a bargaining representative
• making or terminating an individual flexibility arrangement under a modern award or enterprise agreement
• agreeing to cash out paid annual leave or paid personal/carer’s leave
• making a request for flexible working arrangements
• dispute settlement under a workplace law or instrument, or
• any other process or proceedings under a workplace law or instrument.[27]

Industrial action by an employee is:

• the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on or a delay in the performance of the work
• a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee, or
• a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work.[28]

Industrial action by employees is protected industrial action if it is ‘employee claim action’ or ‘employee response action’ for a proposed agreement.[29] Employee claim action is action organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement.[30] Employee response action is action organised or engaged in as a response to industrial action by an employer.[31]

Industrial action may be taken by an employer and most commonly takes the form of a lockout of employees. It is protected if it is ‘employer response action’, being industrial action organised or engaged in as a response to industrial action by a bargaining representative or by the employees.[32]

For industrial action to be protected, the requirements in ss.413 and 414 of the Fair Work Act must be satisfied. Industrial action by employees must be authorised by a protected action ballot of employees in accordance with the requirement of Part 3‒3 Division 8 of the Fair Work Act.

The wearing of union campaign clothing may constitute industrial action, depending on the circumstances. If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering of work and therefore engaging in industrial action.[33]

Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed and will not constitute industrial action if wearing the clothing does not amount to banning the performance of the work, limiting the performance of the work or restricting the performance of the work. There may be situations where particular work can only be performed whilst wearing certain clothing, such as personal protective equipment, and the refusal to wear that clothing could affect the manner in which the work is being performed and result in a restriction or limitation on, or delay in, the performance of the work.[34]

A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Applicant had a workplace right

Personal/carer’s leave
Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 (9 August 2013).

The employee had a workplace right under the provisions of the Fair Work Act to take personal/carer’s leave due to an ‘unexpected emergency’, being the need to collect a primary school child from school.

Compensation ordered

The respondent was ordered to pay the applicant $32,130.78 for loss suffered.

Benefit under an enterprise agreement

Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 (17 May 2013).

McCorkell was successful in tendering for construction works with the Victorian Government. The contract required McCorkell and any of its subcontractors to comply with the Victorian Code of Practice for the Building and Construction Industry and the Implementation Guidelines to the Code. McCorkell put the demolition work out to tender and Eco was an unsuccessful bidder in that tender process because its enterprise agreement was not ‘code compliant’. McCorkell took adverse action against employees of Eco by refusing to engage or make use of the services of Eco because those employees were entitled to the benefit of the Eco Agreement.

The Court found that the Victorian Government also took adverse action against Eco with intent to coerce Eco and its employees to exercise their workplace right to vary the Eco Agreement.

Making complaints about a supervisor

National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 (16 May 2013).

The respondent made use of its redundancy processes to rid itself of an employee who it considered to be troublesome because she exercised her workplace rights by making complaints about the behaviour of her immediate supervisor.

Penalty ordered
The respondent was ordered to pay the union representing the applicant $37,000 as pecuniary penalty.

Underpayment

Hall v City Country Hotel Management Pty Ltd & Ors (No.2) [2014] FCCA 2317 (10 October 2014).

The respondent took unlawful adverse action when it stopped giving shifts to a casual bartender who complained of being underpaid.

Compensation ordered
The respondent was ordered to pay the applicant $8,120.08 for unpaid wages and superannuation; $2,500 for distress, hurt, and humiliation; and $685.07 interest.

Underpayment

Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716 (16 July 2015).

The applicant was employed as a casual truck driver and had worked for the company for only a few weeks when he was dismissed. The applicant was dismissed after making complaints to, and inquiries of, his supervisor about his pay rates and employment status.

The Court noted that there had been a number of previous instances where employees, who had complained about the company failing to pay them their award entitlements, had been dismissed.

Penalty ordered
The respondent was ordered to pay the applicant $7,500 as a pecuniary penalty.

Compensation ordered
The respondent was ordered to pay the applicant $2,900.85 for loss suffered.

Applicant did NOT have a workplace right

Personal/carer’s leave

Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2013] FCCA 473 (27 June 2013).

The employee took personal/carer’s leave and was subsequently removed from the weekend shift, asked to sign an agreement as a precondition to returning to his normal shift and issued with a final written warning.

A clause in the enterprise agreement permitted the employer to require an employee to prove to its satisfaction that an absence from work was caused by illness or injury. The employer submitted that evidence provided by the employee about the absence was unsatisfactory.

The Court held that by virtue of s.107(4) of the Fair Work Act, even if an employee does not provide satisfactory evidence of illness on the request of the employer then an entitlement to that leave does not exist.

Where an enterprise agreement applies, the Court will look to the particular wording of that agreement, and whether it contains any pre-conditions to the entitlement to personal/carer’s leave to determine whether or not the person had a workplace right in a particular situation.

The Court accepted that the absences in question were unauthorised and found that they did not represent the exercise of a workplace right.

Complaint or inquiry in relation to employment

Harrison v In Control Pty Ltd [2013] FMCA 149 (8 March 2013), [(2013) 273 FLR 190].

The applicant continually disagreed with the respondent about the company’s strategic direction.

The Court found that the complaints or inquiries of the applicant were not ‘in relation to his ... employment’ and therefore did not give rise to a workplace right.