Workplace Rights
A workplace right is a legal entitlement, role or ability an employee has under workplace laws or instruments. Examples include making a complaint about their pay or taking leave. Employers can’t take adverse action against a person because they have or use a workplace right. Doing so opens the door to a general protections claim.
Legislation: Fair Work Act 2009 (Cth) ss 340 to 342 and s 361 | Category: Employment Law
What Is a Workplace Right?
Under s 341 of the Fair Work Act, a person has a workplace right if they:
- are entitled to a benefit, or have a role or responsibility, under a workplace law, award, enterprise agreement or order
- are able to start or take part in a process or proceedings under a workplace law or instrument. Examples include a Fair Work Commission application, a dispute resolution procedure or a WHS investigation.
- are able to make a complaint or inquiry to a body that can enforce workplace laws, such as the Fair Work Ombudsman. An employee can also complain or ask about their own employment, including internally.
Prospective employees are covered too. A person has a workplace right while you’re considering hiring them.
Common Examples
- Taking annual leave, personal leave or family and domestic violence leave
- Asking about or complaining about pay, rosters or conditions
- Requesting flexible working arrangements or extended parental leave
- Refusing to monitor or respond to contact outside working hours under the right to disconnect, unless the refusal is unreasonable
- Discussing or disclosing their pay (pay secrecy clauses are banned)
- Raising a safety concern or taking part in a WHS investigation
- Lodging a claim with the Fair Work Commission or a court
- Accessing workers compensation
What Is Adverse Action?
Adverse action goes well beyond dismissal. Against an employee, it includes:
- dismissing them
- injuring them in their employment, for example by cutting hours or pay
- altering their position to their disadvantage, such as a demotion or removing duties
- discriminating between them and other employees
- threatening to do any of these things
Against a prospective employee, it includes refusing to employ them or offering worse terms. Protections also apply to independent contractors and to people who engage them.
Key Compliance Points for Employers
- The reverse onus applies. Once an employee shows they had a workplace right and suffered adverse action, the employer must prove the right was not a reason for it. It must not even be one of several reasons.
- Record the real reason. Document your reasons for disciplinary, performance and restructure decisions when you make them. The decision-maker’s own evidence carries the most weight.
- Watch the timing. Adverse action shortly after a complaint, leave request or FWC claim looks retaliatory even when it isn’t. Check your timing and your paper trail first.
- Complaints don’t need to be correct. A complaint made in good faith about a genuine entitlement is protected, even if the employee turns out to be wrong.
- No service or income threshold. Anyone can make a general protections claim. Unfair dismissal is different: it requires a minimum period of employment and a salary under the high income threshold.
- Time limits. Dismissal claims must be lodged with the FWC within 21 days. Non-dismissal claims can be brought within 6 years.
- The exposure is significant. Courts can order uncapped compensation, reinstatement and civil penalties for each contravention. Individual managers involved can be personally liable.
Frequently Asked Questions
What counts as a workplace right?
Any entitlement, role or responsibility under a workplace law or instrument counts. So does the ability to take part in a process or proceeding, and the ability to make a complaint or inquiry about their employment. Taking leave, asking about pay and requesting flexible work are all common examples.
Is a complaint protected if the employee is wrong?
Generally yes, as long as the complaint is made in good faith and relates to a genuine source of entitlement, such as their contract, award or a law. Complaints made for an ulterior purpose, or with no connection to any entitlement, may not be protected.
Can I dismiss an employee who has made a complaint?
Yes, but only for reasons that have nothing to do with the complaint. You’ll need to prove that. Clear, contemporaneous evidence of the real reason, such as documented performance issues that predate the complaint, is critical.
Is union membership a workplace right?
It’s protected, but under a separate provision. Union membership and lawful industrial activity are covered by the industrial activity protections in s 346 of the Fair Work Act. They carry the same reverse onus and remedies.
What’s the difference between general protections and unfair dismissal?
Unfair dismissal asks whether a dismissal was harsh, unjust or unreasonable. It has service and income thresholds, and compensation is capped. General protections asks why the action was taken. It has no thresholds, covers action short of dismissal, and compensation is uncapped.
