In every workplace, rights and entitlements are integral to ensuring a fair and equitable environment for employees. These are collectively referred to as ‘workplace rights’, a term that describes employment benefits and the liberty to assert and utilize them. The Fair Work Act of 2009 (Cth) delineates several categories of workplace rights, which we’ll explore further in this blog post.
Understanding Your Rights in the Workplace
Workplace rights cover a broad spectrum of entitlements, roles, and responsibilities. They are categorized under:
- Provisions of a workplace law, workplace instrument, or order from an industrial body.
- The opportunity to participate in proceedings or processes in line with workplace laws or instruments.
- The ability to make complaints or inquiries, provided certain prerequisites are met. [s 341].
To maintain a healthy working environment, it is critical to understand that adverse action against a person due to their workplace right, or because they chose to (or not to) exercise their workplace right, is prohibited.
Take, for instance, the restriction against pay secrecy. As of 7 December 2022, employees are permitted to disclose details about their pay, remuneration, and the terms of their employment. This holds even if there are pay secrecy clauses in their employment contracts [ss 333B and 333C].
What Constitutes Adverse Action?
The general protection provisions within the Fair Work Act are designed to shield individuals from adverse action. Understanding what qualifies as adverse action is fundamental as it intersects with many of the protections.
The definition of adverse action varies depending on the nature of the relationship between the involved parties. For employers, it could involve discrimination, dismissing an employee, refusing to employ someone, or prejudicing the employee’s position. This definition covers conduct from employers, employees, industrial associations, independent contractors, and principals, extending protection to prospective employees as well [s 342].
Industrial Activities and Their Significance
Industrial activities refer to a person’s right to choose whether to be a member of an industrial association, participate or not participate in certain industrial activities. Any adverse action taken against a person in relation to these activities is forbidden, as is offering incentives to influence a person’s decision to join or not join an industrial association [s 350].
Workplace Coercion, Misrepresentation, and Undue Influence
Coercion and misrepresentation regarding workplace rights and industrial activities are also prohibited. For example, it is illegal for industrial associations to organise action against an employer who refuses to comply with an unlawful request. Likewise, employees are safeguarded from undue influence or pressure from their employer regarding decisions to accept or terminate individual flexibility arrangements [ss 344, 348-349].
Discrimination Protections and More
Workers and prospective employees are also protected against workplace discrimination based on 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, such as victimisation or refusal to employ, on these grounds is prohibited.
Moreover, employers are prohibited from discriminating against an employer because their employees are covered (or not covered) by a specific type of workplace instrument, such as a modern award instead of an enterprise agreement.
The Act also provides protections against coercion to make certain employment or management decisions. For example, an employer is forbidden 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)).
Safeguard Against Sham Contracting
The Act also provides protections against sham contracting, where employers attempt to disguise actual employment arrangements as independent contracting arrangements [ss 357-359]. To ascertain whether you should be classified as an independent contractor or an employee, refer to the Fair Work Ombudsman’s website: www.fairwork.gov.au.
What to Do When Your Protections are Breached
If you believe your rights under the general protections have been breached, the Fair Work Commission can hold a conference to attempt to resolve the matter. In dismissal cases, the conference is compulsory. For all other cases, participation in a Fair Work Commission conference is optional.
If you are dismissed from employment, an application to hold a conference with the Fair Work Commission must be submitted within 21 days of the dismissal. If the matter cannot be resolved at 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 a remedy.
Potential remedies include monetary penalties, injunctions, compensation, and reinstatement in the event of dismissal. Costs will only be awarded if the proceedings were instituted vexatiously, the costs were incurred due an unreasonable act by the other party, or one party unreasonably refused to participate in the Fair Work Commission’s proceedings.
Call Frontline Employment Defenders Now so we can help if you have been bullied or unfairly dismissed on1300 089 353 or visit https://www.fled.com.au