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“Workplace rights” and “adverse action” – Fear of the unknown or simply not yet known?

Published on February 14, 2011

The Fair Work Act 2009 (Cth), which commenced on 1 July 2009, introduced some new and enhanced provisions relating to the protection of what are called “workplace rights”. These provisions provide an alternative basis upon which legal proceedings can be commenced by employees against employers where they are subjected to “adverse action”. However, in the nine months since the commencement of the Act, there has not been a huge wave of claims. Is it because employees fear the unknown quantity of new legislation or are they simply unaware that such rights exist?

What is a “workplace right”? 
An employee has a “workplace right” if they:

• have an entitlement under a workplace law, Award or Agreement;
• are able to initiate or participate in a process or proceedings under a workplace law, Award or Agreement; or
• are able to make a complaint or inquiry in relation to their employment.

What is “adverse action”? 
An employer takes “adverse action” against an employee by:

• dismissing the employee;
• injuring the employee in his or her employment;
• altering the position of employee to the employee’s prejudice;
• discriminating between the employee and other employees; or
• threatening or organising to take such action. An employer is prohibited from taking “adverse action” because the employee:
  • has a “workplace right”;
  • has or hasn’t exercised a “workplace right”;
  • proposes or proposes not to exercise a “workplace right”.

Consequences of taking “adverse action” 
Where an employer takes “adverse action” against an employee for a prohibited reason they will have contravened a civil remedy provision (unless exceptions apply), and proceedings may be commenced against them. For example, if an employee was dismissed because they were regularly absent from work due to illness and took personal leave (ie exercising a “workplace right”), the employee would be entitled to commence proceedings.

Remedies available
An employee who believes that they have suffered “adverse action” for a prohibited reason may seek relief as follows:

• Where dismissed – if the employee alleges the dismissal was for a prohibited reason they may commence proceedings at Fair Work Australia (“FWA”) within 60 days of termination (NB late applications may be accepted in exceptional circumstances). FWA must conduct a conference (eg using mediation or conciliation), but if all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, a certificate to that effect must be issued. The employee will then have 14 days to lodge an application to have their claim determined by a court.
• Other “adverse action” – if the employee alleges that they have suffered “adverse action” (other than dismissal) for a prohibited reason they may commence proceedings at FWA, or make an application directly to the Federal Court or Federal Magistrates Court, within six years of the alleged contravention.

Where an employer is found to have contravened a civil remedy provision, the Federal Court or the Federal Magistrates Court may make a range of orders against the employer, including:

• an injunction;
• compensation;
• reinstatement;
• a pecuniary penalty (up to $6,600 if the employer is an individual or up to $33,000 if the employer is a company).

These claims are not subject to the same limitations as unfair dismissal claims. For example: there is no upper limit to earnings; there is no requirement to have six months’ service; different rules do not apply to “small business” employers; and the onus of proof has effectively been reversed, so employers will have to prove that the action was not taken for the reason(s) alleged.

Conclusion
Court proceedings may be commenced by any employee who believes they have suffered “adverse action” for a prohibited reason: clearly, there is potential for a great number of claims. However, so far only one matter has proceeded to full hearing and judgment.

The reason for the lack of such claims is not known, but it is likely that many employees simply don’t know about the availability of such proceedings, and those who do may be reluctant to bring a “test case”, particularly where unfair dismissal proceedings are also available. Accordingly, employers should continue to exercise great caution when dismissing employees or taking other “adverse action” to ensure that they do not contravene civil remedy provisions, and thereby expose themselves to court proceedings.