20 August 2010
Workplace rights under the Fair Work Act: what we've learnt to date
Some of the most talked about new provisions in the Fair Work Act 2009 are the "workplace rights" protections. It is hoped that these provisions will protect employees from any adverse action of their employer against their workplace rights.
We have learnt in the first year since the commencement of Fair Work that the workplace rights provisions can provide a potent strike against employer action but the law has yet to take any large, radical steps that interfere with an employer's ability to take legitimate and lawful action.
What is a workplace right?
The Act says a person has a workplace right if a 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; or
able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
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 a workplace instrument; or is able to make a complaint or inquiry in relation to his or her employment.
What can't an employer do?
An employer cannot take adverse action (that is, any detrimental action) against an employee or prospective employee for the reason of, or for reasons including that:
an employee has a workplace right; or has, or has not, exercised a workplace right; or proposes or proposes not to, exercise a workplace right; or
to prevent the exercise of a workplace right by the other person.
The potent strike
An employee can, on an urgent basis, approach the court to seek an injunction restraining an employer from taking adverse action before that action is taken. This quick relief has the potential to delay or thwart employer action. That is what occurred in Jones v Queensland Tertiary Admissions Centre  FCA 1382 and  FCA 399.
Ms Jones was the CEO of QTAC, which was negotiating with the union for a new enterprise agreement. Ms Jones was taking tough negotiation positions on behalf of QTAC. The union lodged a complaint against Ms Jones for bullying employees. QTAC, to comply with its legal obligations, commenced an investigation of the allegations. Ms Jones was asked to respond to the accusations.
Ms Jones obtained an injunction restraining QTAC from proceeding with its investigation. Ms Jones was able to argue that QTAC may be taking adverse action against her because of her role as a bargaining representative of QTAC. QTAC were ordered not to take any action against Ms Jones until after a final hearing, some months later.
What was interesting about the interlocutory judgment is that it confirmed the breadth of what is a workplace right despite the judge saying QTAC had powerful and persuasive arguments that Ms Jones as the CEO was not a bargaining representative of QTAC. Further, the Court held that an investigation itself was capable of constituting adverse action even though no adverse decision had been made by QTAC against Ms Jones; her position was, by virtue of the investigation, altered to her prejudice.
Ultimately, five months later and after a full hearing, the Court found that QTAC was legitimately investigating the bullying complaints and had an obligation to do so. QTAC was not acting for any unlawful reason connected with Ms Jones' role in the bargaining process. The investigation was allowed to continue.
Being merciful is not adverse action
Arnotts had implemented a new safety system which two of its employees, recently trained in the system, ignored. Arnotts was considering dismissal. But rather than dismiss the employees, Arnotts offered them leave without pay for a month in lieu of dismissal. The employees accepted but reserved their right to challenge the decision (LHMU v Arnotts Biscuits Limited  FCA 770).
The employees alleged they were entitled to the benefit of the Fair Work Act and their industrial instrument which made no provision for suspension without pay. They argued they were entitled to work and pay.
The Court accepted that the employees had workplace rights. However, employees and employers were at liberty to agree to vary the terms of their employment contract. The making of the offer for leave without pay was merciful and not adverse action. Faced with dismissal, the offer of leave without pay was free to be accepted by the employees. The action taken by Arnotts was not because of the employees' workplace rights but rather to be merciful in circumstances where it could have legitimately terminated their employment.
The workplace rights provisions are expansive and extend to almost any detrimental action taken by an employer. There is the potential for employees to have swift resort to these provisions to prevent any adverse action in their employment.
Employers are advised to carefully consider any potentially adverse decisions made in employment and clearly articulate and record the legitimate reasons for such decisions. Only then will employers be in a position to resist an urgent application to restrain their actions.
Ultimately, employers who act lawfully and legitimately will be able to implement employment decisions properly made. The adverse action provisions may create a bump in the process but to date the Courts have adopted a realistic commonsense approach to the application and interpretation of these new provisions.
Author: James Mattson