Workplace rights — new provisions — but how important?


Workplace rights — new provisions — but how important?

The new provisions on 'workplace rights' and 'adverse action' in the Fair Work Act have received little publicity so far, but some presenters at recent conferences have described them as a 'sleeper' issue.


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The new provisions on ‘workplace rights’ and ‘adverse action’ in the Fair Work Act have received little publicity so far, but some presenters at recent conferences have described them as a ‘sleeper’ issue.
The new provisions are in Ch 3 Div 3 of the Fair Work Act, s340 ff.
Section 341 states that a person has a ‘workplace right’ if he/she:
  • ‘is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
  • is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
  • is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee — in relation to his or her employment.’
This article notes differing views on the likely impact of workplace rights provisions. Another article will consider the content of workplace rights in more detail.
An opportunity for lawyers?
At the 2009 Australian Workplace Relations Summit, held in Sydney 10–11 June 2009, participants in a panel discussion said that how important the provisions become will depend, like many other provisions of the Fair Work Act, on the approach Fair Work Australia takes towards interpreting them. That is at present unknown, and no doubt will depend on a few test cases to establish some guidelines.
However, some panelists suggested that the relatively broad scope of the provisions may be perceived by some law firms as a new opportunity for business, and perhaps as a last resort for action where other more ‘traditional’ avenues for claims, such as unfair dismissal or discrimination claims, cannot be pursued.
Another comment was that the provisions may represent the beginning of a move towards an individual grievance type of dispute resolution model. This is a slightly ironic development, given that one of the main aims of the former WorkChoices legislation was to increase the focus on individual negotiations and agreement-making.
At another conference conducted by the Workplace Research Centre in Sydney on 26 June 2009, Joe Catanzariti, partner of the law firm Clayton Utz and a widely-quoted commentator on workplace relations law, said that he believes this will become a big issue and law firms and FWA could be inundated with ‘adverse action’ complaints. One scenario he suggested is that employees who receive an unfavourable performance review and fear they are being set up for eventual dismissal may claim this is adverse action against them and seek an injunction from FWA to prevent them from being dismissed. He added that this situation resembles in some ways the earlier ‘procedural fairness’ elements of ‘unfair dismissal’ legislation provisions.
… or a non-issue?
On the other hand, some audience comments at the Workplace Research Centre conference suggested that the provisions add little to existing requirements; they simply attempt to codify them in the law. They did not expect the provisions to receive much attention and use, with the more ‘traditional’ approaches such as discrimination and dismissal claims being preferred.
So whether the workplace rights and adverse action provisions will actually be widely used remains to be seen. When WorkChoices commenced three years ago, there were many predictions that dismissed employees would resort to claims under anti-discrimination legislation instead of WorkChoices. However, claims statistics since then have not shown such a trend.
Context will be important
What many of the above examples indicate is that the context in which things are done or said will influence whether a ‘workplace right’ has been established or whether ‘adverse action’ has occurred. Importantly, it seems it will not be essential that a ‘formal’ event has taken place, such as an employee lodging an ‘official’ written complaint or nominating a third party to represent him/her. Again depending on context, if an employee mentions informally that he/she has an issue about something related to work, this may be sufficient to amount to ‘exercising a workplace right’ and will mean that the employee becomes protected from ‘adverse action’ by the employer.
It is arguable that the provisions do not fundamentally broaden the protections available to employees. For example, discrimination, victimisation and unfair or unlawful dismissal have been covered by law for many years now and this remains the case. What the new provisions may achieve is to instigate protections for employees at a somewhat less formal level.
It may also be possible that an employee who is not covered by the Fair Work Act’s ‘unfair dismissal’ provisions (for example, because the employee has not completed the employment qualifying period or the size of the business is too small) could attempt to pursue a claim via the ‘workplace right’ and ‘adverse action’ provisions instead. The alternative view is that FWA will regard dismissal-related issues as only to be dealt with by the Act’s provisions on unfair and unlawful dismissal, and proof that a dismissal was either of those will be required. An employee might be able to seek an injunction preventing dismissal at least until FWA had investigated the matter, but would still have to prove that subsequent dismissal would be unfair or unlawful.
Whether the above occurs will depend a lot on how FWA interprets the ‘workplace rights’ and ‘adverse action’ provisions, and will probably require some test cases before the issues become clearer.
Catanzariti claimed at the Workplace Research Centre conference that the adverse action provisions are likely to be particularly relevant to the bargaining process, and will apply to bargaining representatives, which includes unions.
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