Fair Work Act – February HR Breakfast Club Summary

19 Feb , 2019 HR Breakfast Club Summary

Fair Work Act – February HR Breakfast Club Summary

This month James Macken, barrister from Blackburn Chambers, spoke about the General Protections provisions of the Fair Work Act.

What is the general protections jurisdiction?

Section 240 of the Fair Work Act provides:

A person must not take adverse action against another person:

(a)  because the other person:

(i)  has a workplace right; or

(ii)  has, or has not, exercised a workplace right; or

(iii)  proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)  to prevent the exercise of a workplace right by the other person.

What is a ‘workplace right’?

James took us through the very broad definition of a ‘workplace right’. Noting that it extends from making a sexual harassment claim to asking why your wage hasn’t yet been paid. The broad definition given by section 341 of the Fair Work Act is:

A person has a workplace right if the person:

(a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)  is able to make a complaint or inquiry:

(i)  to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)  if the person is an employee—in relation to his or her employment.

What is ‘adverse action’?

Again, James noted that the concept of ‘adverse action’ is wide. Some adverse action is obvious (such as termination of employment) but because of the broad drafting of the provision ‘adverse action’ can extend to any deleterious action by an employer. For example:

  • Changing an employee’s start time to 7:00am permanently (instead of 8:00am);
  • Removing an employee’s overtime shifts; and
  • Always placing an employee on overtime on a Friday.

The Fair Work Act says that adverse action is taken by an employer against an employee if the employer:

  • Dismisses the employee; or
  • Injures the employee in his or her employment; or
  • Alters the position of the employee’s prejudice; or
  • Discriminates between the employee and other employees of the employer.

Reason for taking adverse action – how to determine the ‘because of’ factor?

James invited us to consider the reasons that we make any major decision in our lives. It is unusual for any decision to be motivated by just one reason. So too, he suggests, is it unlikely that any adverse action taken by an employer is taken purely for one reason. The difficulty with this jurisdiction is that the courts are attempting to determine a decision maker’s mental state – which is often inscrutable.

The case of Barclay v Bendigo Regional Institute of TAFE and CFMEU v BHP Coal were examined. In both of these cases the employers took adverse action (by suspending or terminating the employee) against their employees who had exercised their rights as union members (by sending an email to other union members within the organisation, or by participating in a strike). The problem in determining both of these matters is that there were objective circumstances which supported a finding that the employee was engaged in lawful industrial activities and that was why the adverse action had been taken, but the decision makers in both matters gave subjective reasons for taking the actions that they did.

In CFMEU v BHP Coal it was held that there was a difference between

  • dismissing someone for advancing the views and interests of the union by holding up a sign which disparaged working during a strike (this would be unlawful)
  • and dismissing someone for holding up a sign with offensive language on it (this would not be unlawful)

Similarly in Barclay v Bendigo Regional Institute of TAFE the decision maker argued that the employee had been suspended, not because of his union affiliation, but because of the content of the email.

To James, distinctions such as those listed above can be classed as ‘distinctions without a difference’.

The courts have determined that they can take into account both subjective and objective evidence. And to date the courts have somewhat erred on siding with a decision maker’s (sometimes) self-serving recount of their mental state at the time of making a decision. Employers should be reassured that as long as they have defensible reasoning for their adverse action they are unlikely to fall foul of the general protections provisions. Having said this, the case law is not consistent and there is never a guaranteed outcome for either party.

To conclude, a jurisdiction which was once considered applicant friendly (because of the broadness of the provision combined with the reverse onus of proof on the employer) appears to be more toothless than once thought.

If you have any further questions in relation to the above please contact us.

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