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Navigating the Fair Work Act 2009: Understanding Workplace Rights and Adverse Actions

In the landscape of Australian employment law, the Fair Work Act 2009 (Cth) (FW Act) serves as a cornerstone. It safeguards individuals in the workplace by ensuring they are protected against adverse actions due to their exercise, or potential exercise, of a workplace right. Further, this protection extends to situations where a third party exercises a workplace right on behalf of another. Ultimately, the aim is to shield employees, employers, and independent contractors from unfair, unlawful, and discriminatory conduct within the workplace.

Defining Workplace Right

So, what exactly is a “workplace right”? It can apply if an individual:

  • Is entitled to, or has a role or responsibility under, a workplace law, Award, enterprise agreement, or an order from the Fair Work Commission or a Court.
  • Has the freedom to lodge a complaint or inquiry related to their employment.
  • Is able to start a proceeding under a workplace law, Award, or enterprise agreement.

A prime example of exercising a workplace right is lodging an enquiry or complaint regarding wages, work hours, or discrimination.

Unpacking Adverse Action

When a person faces discrimination, dismissal, refusal of employment, or any form of harm in their employment – such as withholding overtime pay, demotion, or reduction of work hours – that’s classified as an adverse action. For a more comprehensive understanding, you can refer to section 342 of the FW Act.

Exploring General Protections Claim

If an individual who has, or intends to, exercise a workplace right experiences adverse action, they are entitled to bring forth a general protections claim. This claim can be lodged by anyone, including a contractor or a prospective employee, although most claims typically involve employers and employees.

Additional Protections

The FW Act further safeguards employees from discrimination, dismissal due to temporary absence (due to injury or illness), coercion related to workplace rights, undue influence or pressure in specific situations, misrepresentations about workplace rights, and sham arrangements.

The Burden of Proof and Damages

All claims falling under Part 3-1 of the FW Act are general protections claims, and the person alleged to have taken the adverse action bears the burden of proof. In essence, it is presumed that the action occurred unless proven otherwise by the accused party.

Interestingly, the unlawful reason doesn’t have to be the sole cause of action. If among several reasons, even one of those is unlawful, the employer will have breached the adverse action provisions of the FW Act. This brings the importance of understanding the Act and its implications for both employers and employees into sharper focus.

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