In Barnett v Territory Insurance Office [2011] FCA 928 the Federal Court has provided some certainty over the potentially broad reaching adverse action provisions of the Fair Work Act ('FWA').
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 enough.
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 FWA.
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 engagement.
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.
