Fair Work Commission

Overview

See Fair Work Act s.341

A person has a workplace right if the person:

• is entitled to the benefit of a workplace law, workplace instrument or an order made by an industrial body
• has a role or responsibility under a workplace law, workplace instrument or order made by an industrial body
• is able to initiate or participate in a process or proceedings under a workplace law or instrument
• is able to make a complaint or inquiry to a person or body with capacity to seek compliance with a workplace law or instrument, or
• is able to make a complaint or inquiry in relation to his or her employment.

Workplace law

A workplace law is a law that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).^[1]

Workers’ compensation laws are directed to matters that both regulate and define the employer/employee relationship and therefore fall within the definition of ‘workplace law’.^[2]

The fact that a law regulates other relationships as well as the employment relationship does not take it outside the definition of workplace law.^[3] The Equal Opportunity Act has been found to be a workplace law.^[4]

The Privacy Act has been found not to be a workplace law as it does not regulate the relationship between employers and employees.^[5]

A particular provision within an Act or regulation could be said to regulate the relationship between employers and employees, even though the Act or the regulations as a whole do not.^[6]

A workplace law must be a statute law (including delegated legislation). It does not generally include rights arising under contracts of employment or other common law rights.^[7]

Workplace instrument

A workplace instrument is an instrument that is made under, or recognised by a workplace law and concerns the relationships between employers and employees.^[8]

The term ‘workplace instrument’ does not apply to the contract of employment itself.^[9]

Order made by an industrial body

Industrial body means:

• the Fair Work Commission
• a court or commission (however described) performing or exercising, under an industrial law, functions and powers corresponding to those conferred on the Fair Work Commission by the Fair Work Act 2009 (the Fair Work Act), or
• a court or commission (however described) performing or exercising, under a workplace law, functions and powers corresponding to those conferred on the Fair Work Commission by the Fair Work (Registered Organisations) Act 2009 (Cth).^[10]

Other bodies that can be considered ‘industrial bodies’ are:

• the Federal Court
• the Federal Circuit Court
• an eligible State or Territory court (meaning one of the following):
  • a district, county or local court
  • a magistrates court
  • the South Australian Employment Tribunal, and
  • the Industrial Court of New South Wales
• a State or Territory commission (meaning one of the following):
  • the Industrial Relations Commission of New South Wales
  • the Queensland Industrial Relations Commission
  • the South Australian Employment Tribunal
  • the Western Australian Industrial Relations Commission, and
  • the Tasmanian Industrial Commission.

Role or responsibility under a workplace law or instrument

It has been accepted that the role of a bargaining representative is a role or responsibility under a workplace law.^[11]

An obligation to ensure workplace safety as a Health and Safety Officer is also a role or responsibility under a workplace law.^[12]

Able to make a complaint or inquiry to seek compliance with a workplace law or instrument

A person exercises a workplace right where they make a complaint or inquiry to a body having capacity to seek compliance with the law or a workplace instrument, even when the complaint concerns other employees.^[13]

Able to make a complaint or inquiry in relation to his or her employment

A person exercises a workplace right where they make a complaint or inquiry in relation to their employment. The Fair Work Act does not restrict the person or body to whom such a complaint or inquiry could be directed. It can include situations where an employee makes an inquiry or complaint to his or her employer.^[14] Seeking legal advice in relation to a person’s employment also falls within the meaning of a complaint or inquiry.^[15]

Although the words ‘is able to’ are taken to have a broad meaning, in order for the complaint or inquiry to be considered a workplace right, it is necessary that the complaint or inquiry concerns and is confined to the person’s employment.^[16]

In Evans v Trilab Pty Ltd^[17] the Federal Circuit Court found that a complaint or inquiry need:

• not arise from a statutory, regulatory or contractual provision before it can be a complaint or inquiry in relation to a person’s employment for the purposes of s.341(1)(c)(ii) of the Fair Work Act, and
• only have an indirect nexus with a person’s terms or conditions of employment to come within the scope of s.341(1)(c)(ii), and may be a complaint about the conduct of another person in the workplace or about a workplace process which concerns or has implications for an employee’s employment.

Process or proceedings under a workplace law or instrument

Each of the following is a process or proceedings under a workplace law or instrument:

• a conference or hearing held by the Fair Work Commission (the Commission)
• court proceedings under a workplace law or instrument
• protected industrial action
• making, varying or terminating an enterprise agreement
• appointing (or terminating the appointment of) a bargaining representative
• making or terminating an individual flexibility arrangement under a modern award or enterprise agreement
• agreeing to cash out paid annual leave or paid personal/carer’s leave
• making a request for flexible working arrangements
• dispute settlement under a workplace law or instrument, or
• any other process or proceedings under a workplace law or instrument.^[22]

Industrial action

Industrial action by an employee is:

• the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on or a delay in the performance of the work
• a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee, or
• a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work.^[23]

Industrial action by employees is protected industrial action if it is ‘employee claim action’ or ‘employee response action’ for a proposed agreement.^[24] Employee claim action is action organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement.^[25] Employee response action is action organised or engaged in as a response to industrial action by an employer.^[26]

Industrial action may be taken by an employer and most commonly takes the form of a lockout of employees. It is protected if it is ‘employer response action’, being industrial action organised or engaged in as a response to industrial action by a bargaining representative or by the employees.^[27]

For industrial action to be protected, the requirements in ss.413 and 414 of the Fair Work Act must be satisfied. Industrial action by employees must be authorised by a protected action ballot of employees in accordance with the requirement of Part 3‒3 Division 8 of the Fair Work Act.

The wearing of union campaign clothing may constitute industrial action, depending on the circumstances. If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering of work and therefore engaging in industrial action.^[28]

Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed and will not constitute industrial action if wearing the clothing does not amount to banning the performance of the work, limiting the performance of the work or restricting the performance of the work. There may be situations where particular work can only be performed whilst wearing certain clothing, such as personal protective equipment, and the refusal to wear that clothing could affect the manner in which the work is being performed and result in a restriction or limitation on, or delay in, the performance of the work.^[29]

Prospective employees

A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Case examples

References