In January 2013, we published a legal update regarding the case
of Beauty and the Geek contestant Adam Marshall, who made
an adverse action claim against his employer, the Bureau of
He claimed that he had exercised a "workplace right",
being an entitlement under an enterprise agreement to take leave
when medically unfit. The Federal Magistrates Court (now known as
the Federal Circuit Court) accepted that this was a workplace right
for the purposes of an adverse action claim.
In the recent case of Daw v Schneider Electric (Australia)
Pty Ltd  FCCA 1341, Mr Daw tried to stretch the
definition of "workplace right" further.
Mr Daw claimed that his employment was terminated for refusing
his employer's request to carry out an act that was either
illegal or, if not illegal, not reasonable in all the
circumstances. He had been asked to do professional engineering
services work , as defined in the Professional Engineers Act
2002 (Qld), in circumstances where neither Mr Daw nor his
direct supervisor was a registered professional engineer as
required by that Act.
The Judge agreed with Mr Daw's factual contentions but did
not agree that, by refusing to carry out what he correctly saw as
illegal or unlawful acts, he was exercising a workplace right for
the purposes of the Fair Work Act. As a result, his claim
Mr Daw was relying on his contractual right to refuse to do work
that is illegal or unreasonable. The Judge held that this was not a
right that arose under "any other law of the Commonwealth...
that regulates the relationships between employers and
Specifically, the Judge found that, if the workplace right does
not arise from a workplace instrument or an order of an industrial
body, the workplace right must arise through statute law. It cannot
arise by reference to the general law of contract or the private
rights and entitlements that accrue between employer and employee
pursuant to the employment contract.
If Mr Daw's claim had been successful, it would have vastly
expanded the circumstances in which employees could make adverse
action claims. The position remains however that the exercise of
the "workplace right" which an employee claims was the
cause of their dismissal must arise through a workplace instrument
(award, enterprise agreement, etc), an order made by an industrial
body or a statute that regulates the relationships between
employers and employees.
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.
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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.
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