Rights and entitlements in the workplace serve as the foundation of any employment relationship, guaranteeing a balanced and fair setting for employees. Collectively known as ‘workplace rights’, these refer to the privileges associated with employment and the autonomy to invoke and leverage them. In this blog, we delve into the intricacies of workplace rights, as outlined by the Fair Work Act of 2009 (Cth).
Decoding Workplace Rights
Workplace rights extend across a wide range of entitlements, roles, and duties. The primary categories include:
- Rights and responsibilities under a workplace law, a workplace instrument, or an order by an industrial body.
- Engagement in procedures or proceedings associated with workplace laws or instruments.
- The ability to lodge complaints or inquiries, given certain conditions are met [s 341].
To create an equitable workplace environment, it’s critical to recognize that it’s unlawful to take negative action against a person due to their possession of a workplace right or their choice to use (or not use) this right.
For instance, let’s consider the ban on pay secrecy. From 7 December 2022, every employee has the freedom to reveal (or choose not to reveal) specifics about their salary, benefits, and employment conditions, regardless of any pay secrecy clauses in their employment agreement [ss 333B and 333C].
Unravelling the Concept of Adverse Action
One key aspect of the Fair Work Act’s general protection provisions is the prevention of adverse action. The meaning of adverse action is context-dependent, reliant on the nature of the relationship between the relevant individuals.
For an employer, adverse action could manifest as prejudice, terminating an employee’s contract, refusing to hire someone, or unjustly modifying the employee’s role. This definition applies to actions from employers, employees, industrial associations, independent contractors, and principals, and it also covers prospective employees in specific scenarios [s 342].
The Role of Industrial Activities
Industrial activities encompass an individual’s right to choose to be a member or officer of an industrial association and to participate or abstain from certain industrial activities. It’s forbidden to take adverse action against an individual in relation to these activities, or to offer incentives to influence their decision to join or refrain from joining an industrial association [s 350].
Coercion, Misrepresentation and Excessive Influence in the Workplace
Coercion and misrepresentation regarding workplace rights and industrial activities are also disallowed. For instance, it’s illegal for industrial associations to initiate action against an employer who denies an unlawful request. Equally, employees are protected from excessive influence or pressure from their employer concerning their decision to agree to or dissolve individual flexibility arrangements [ss 344, 348-349].
Safeguards Against Discrimination
Employees and potential employees are also safeguarded from workplace discrimination based on factors like race, colour, sex, sexual preference, age, disability, marital status, pregnancy, family or carer’s responsibilities, religion, political opinion, national extraction, or social origin. Any adverse action, including victimisation or refusal to hire, on these grounds is prohibited.
Additionally, an employer cannot discriminate against another employer because their employees are included (or not included) under a specific workplace instrument, such as a modern award rather than an enterprise agreement.
The Act also incorporates protections against coercing a person to make certain employment or management decisions. For example, an employer is barred from taking adverse action against a casual employee who requests a casual conversion (a National Employment Standard under Division 4A of the Fair Work Act 2009 (Cth)).
Protection Against Sham Contracting
Further protections extend to guard against sham contracting, where employers might attempt to misrepresent genuine employment relationships as independent contracting arrangements [ss 357-359]. T
Steps to Take if Your Protections are Infringed
If you suspect that your rights under the general protections have been violated, the Fair Work Commission can convene a conference to try and settle the matter. In cases of dismissal, conference attendance is obligatory. In all other situations, participation in a Fair Work Commission conference is optional.
Should you be dismissed from employment, a request for a conference with the Fair Work Commission must be lodged within 21 days of the dismissal. If the matter remains unresolved following the conference, you can apply to the Fair Work Division of the Federal Court or Division 2 of the Federal Circuit and Family Court for redress.
Possible remedies encompass monetary penalties, injunctions, compensation, and reinstatement in cases of dismissal. Costs may only be awarded if the proceedings were initiated vexatiously, costs were incurred due to unreasonable actions by the other party, or one party unreasonably declined to participate in the Fair Work Commission’s proceedings.
Understanding and exercising your workplace rights is a crucial step in fostering a harmonious and equitable workplace environment.
Feel free to contact Frontline Emplo9yment Defenders now on 1300 089 353 or visit us at www.fled.com.au