In Barnett v Territory Insurance Office  FCA 928
the Federal Court has provided some certainty over the potentially
broad reaching adverse action provisions of the Fair Work
Employers will be aware that the 'adverse action'
creature was introduced under the FWA. The adverse action
provisions outline protections for employees and independent
contractors (amongst others) that arise under workplace rights. It
has been our experience that some employees are making adverse
action claims when they are outside the unfair dismissal regime or
for other matters that fall through the cracks.
In effect the adverse actions protections have created a greater
opportunity for employees to have matters heard before the tribunal
for conciliation where they would not normally have the right.
Notwithstanding the adverse action matters that have proceeded
to conciliation, there is a significant jurisdictional hurdle that
must be overcome if the matter is to have any success, and that is
the workplace right must stem from a "workplace
instrument" or law, a contract of employment alone is not
In Barnett his honour Justice Mansfield considered the adverse
action provisions of the Act, and in particular the definition of a
'workplace instrument'. Barnett, who was dismissed from his
employment, and was jurisdictionally excluded from the unfair
dismissal regime, argued that his dismissal was an adverse action
taken by his employer because he had exercised a workplace right in
carrying out his role under the contract of employment, which he
argued was a 'workplace instrument'.
In determining the matter Justice Mansfield considered the
statutory definition of 'workplace instrument' which means
an instrument made under or recognised by a workplace law, and
concerns the relationships between employers and employees. Barnett
argued that his contract of employment was recognised by the
However, his Honour was not prepared to extend the definition as
widely as that argued by Barnett as a 'contract of employment
at common law must underlie every employment relationship to which
the FWA applies, it is unlikely that the concept of recognition by
a 'workplace law' was intended to refer to the contract
itself'. His Honour went on to hold that the workplace
'instrument must be given legal significance by reason of the
particular workplace law'.
This decision provides some certainty for employers in an arena
that was considered to be a significant battle ground and ripe for
litigation. It is now clear that for a workplace right to exist and
be actionable under the adverse action provisions it must come from
something more than just a common law contract. If the opposite was
true any trivial employment dispute could be the subject of a
general protection and this was not the intention of the Act.
In light of the decision it may be the case that adverse actions
will be less common, however we anticipate that employees will
continue to make applications to Fair Work Australia and be the
subject of conciliations and employers should remain prudent in
their dealings with employee regardless of the terms and type of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).