Workplace rights protections and the new Fair Work Act

The Fair Work Act 2009 (Cth) (“the Act”) contains new measures designed to protect the workplace rights of both employees and employers. The new laws are intentionally very broad and will apply in a wide range of circumstances. Employers must have an understanding of these new laws if they are to avoid unintentionally breaching the Act.

Specifically, employers should note that:

1. A person cannot take “adverse action” against another person in relation to a “workplace right”
2. A “workplace right” is broadly defined in the Act and incorporates any right that a person may have under any workplace law relating to entitlements, complaints or proceedings
3. A person cannot take any action against another person with intent to coerce them in relation to a “workplace right”
4. An employer cannot exercise undue influence or pressure on an employee in relation to decision affecting their employment conditions
5. A person must not knowingly or recklessly make a false representation in relation to a “workplace right”

The Act’s explanatory memorandum suggests that the following conduct would amount to a breach of the Act:

1. Reducing an employee’s regular hours on the basis that they made a complaint against the employer to a union
2. Informing a long term casual that only full time employees are entitled to parental leave whilst knowing this is not true
3. Informing a casual employee that unless they were to agree to an individual flexibility arrangement the employer could not guarantee minimum weekly hours of work
   Pressuring an employee to cash out their annual leave entitlements

The new laws make it much easier for employees to establish that a breach of the Act has occurred. This is because the Act provides that:

1. A person is taken to have acted for a prohibited reason if it can be shown that the prohibited reason is one of the reasons for that person acting as they have done
2. A person is presumed to have acted for a prohibited reason unless that person is able to prove otherwise. That is, the onus will be on an employer alleged to have acted for a prohibited reason to provide that they have not done so

A breach of the workplace rights protections can lead to the imposition of a penalty of up to $33,000 if the offender is a corporation, and up to $6,600 if the offender is an individual. In addition, a court is able to:

1. Award compensation to the victim of the breach
2. Order that the victim have their employment reinstated
3. Issue an injunction to prevent the offender from acting in a particular way

Recommendations

MST recommends that employers:

1. Exercise caution before taking any adverse action against employees
2. Establish appropriate policies and procedures, and implement a workplace education program to ensure that managers and supervisors understand their obligations and responsibilities under the new laws
3. Ensure that detailed records are maintained on issues with employee conduct and behaviours as they arise, and provide employees with written reasons establishing the rationale for any decisions that could possibly result in an adverse action claim
4. Obtain legal advice before taking any adverse action against employees in circumstances where you are unsure of your legal obligations

Author: Laughlin Nicholls