What is a “workplace right”?

Division 3 of Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act) provides wide-ranging protection against “adverse action” for persons who exercise, or have the capacity to exercise, “workplace rights”.

Authored by Nick Le Mare, Partner, and Melody Martin, Associate, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team.

How are workplace rights protected?

Division 3 of Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act) provides wide-ranging protection against “adverse action” for persons who exercise, or have the capacity to exercise, “workplace rights”.

Specifically, s 340(1) of the FW Act provides that a person must not take adverse action against another person:

• because the other person:
  • has a workplace right;
  • has or has not exercised a workplace right; or
  • proposes or proposes not to exercise a workplace right; or
• to prevent the exercise of a workplace right by the other person.

Section 340(2) of the FW Act provides that a person must not take adverse action against another person (referred to as the "second person") because a third person has exercised, or proposes to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

This provision seeks to protect people from adverse action where a third party, such as a union or lawyer, has represented the person in the exercise of their workplace rights. This would, eg, cover a situation where a union obtained an order from the Fair Work Commission (FWC) for the benefit of a particular class of employees, and the employer then took adverse action against any of the employees within the class by reason of the fact that the union had obtained the order.