Workplace rights update: lessons in vigilance for employers

A number of recent decisions have illustrated the scope of what constitutes a 'workplace right' under the Fair Work Act and have reaffirmed that employers must be vigilant to identify facts and circumstances that can give rise to workplace rights for employees.

These decisions highlight that employers must be particularly careful in their dealings with an employee in circumstances of contention or dispute with the employee, particularly where the situation could give rise to new or additional protections for the employee.

Background — what are the General Protections provisions?

Since the introduction of the Fair Work Act in 2009, the General Protections provisions found at Part 3-1 of the Act have been one of the major areas of consideration by employer associations, business groups, and workplace lawyers.

The introduction of these provisions expanded employee protections beyond the scope of both the established Unfair Dismissal regime and the various discrimination provisions underpinning the titled 'Unlawful Termination' regime. The General Protections provisions make it unlawful for employers (as well as principals in relation to contractors) to engage in 'adverse action' against employees and workers on a number of grounds, the most important new one being where an employee has, can, or proposes to, exercise a 'workplace right'.

Section 341(1) of the Fair Work Act 2009 ('the FW Act') provides that a person has a 'workplace right' if the person:

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; 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: to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument; or if the person is an employee, in relation to an employee's employment. The FW Act does not seek to define or restrict what constitutes a 'complaint or inquiry in relation to an employee's employment'. Despite the first paragraphs of section 341(1), the employee's 'complaint or inquiry' need not be made under a workplace law, or to a person or body empowered by a workplace law. The Explanatory Memorandum of the FW Act makes clear that a complaint or inquiry may be made internally to a manager, colleague or the employer's Human Resources (HR) department.

This section needs also to...