Australia: Workplace rights update: lessons in vigilance for employers

Last Updated: 27 January 2014
Article by Peter Doughman

A number of recent decisions have illustrated the scope of what constitutes a 'workplace right' under the Fair Work Act and have reaffirmed that employers must be vigilant to identify facts and circumstances that can give rise to workplace rights for employees.

These decisions highlight that employers must be particularly careful in their dealings with an employee in circumstances of contention or dispute with the employee, particularly where the situation could give rise to new or additional protections for the employee.

Background — what are the General Protections provisions?

Since the introduction of the Fair Work Act in 2009, the General Protections provisions found at Part 3-1 of the Act have been one of the major areas of consideration by employer associations, business groups, and workplace lawyers.

The introduction of these provisions expanded employee protections beyond the scope of both the established Unfair Dismissal regime and the various discrimination provisions underpinning the titled 'Unlawful Termination' regime. The General Protections provisions make it unlawful for employers (as well as principals in relation to contractors) to engage in 'adverse action' against employees and workers on a number of grounds, the most important new one being where an employee has, can, or proposes to, exercise a 'workplace right'.

Section 341(1) of the Fair Work Act 2009 ('the FW Act') provides that a person has a 'workplace right' if the person:

  • is entitled to the benefit of, or 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 workplace instrument; or
  • is able to make a complaint or inquiry:
    1. to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument; or
    2. if the person is an employee, in relation to an employee's employment.

The FW Act does not seek to define or restrict what constitutes a 'complaint or inquiry in relation to an employee's employment'. Despite the first paragraphs of section 341(1), the employee's 'complaint or inquiry' need not be made under a workplace law, or to a person or body empowered by a workplace law. The Explanatory Memorandum of the FW Act makes clear that a complaint or inquiry may be made internally to a manager, colleague or the employer's Human Resources (HR) department.

This section needs also to be read in conjunction with Section 340, which prohibits 'adverse action' not only by reason of a person having a 'workplace right' but also by reason of a person having, or not having, exercised such a right, or proposing, or not proposing, to exercise such a right, or in order to prevent a person exercising such a right.

To these wide provisions is coupled Section 361, which imposes a 'reverse onus' on the employer/principal contractor to establish, if adverse action is taken, that it was NOT taken for a prohibited reason.

Protection arising from the employee's express intention to obtain legal advice

In the decision of Murrihy v [2013] FCA 908, the employer was found to have engaged in adverse action against an employee by reason of a workplace right after threatening the employee with dismissal during a dispute about unpaid commissions. The employee alleged that the threats were made by the employer's Chief Executive after the employee informed the employer that she would be seeking legal advice about the unpaid commissions.

In finding for the employee, Justice Jessop of the Federal Court ruled that the provision should not be limited to a complaint or inquiry to the employer, nor should it only operate to extend protection to employees who are union members. The very fact that the employee expressed an intention or desire to conduct her own external inquiries in relation to her employment constituted a workplace right protecting her from adverse action by reason of that right.

Although most employers would be unlikely to threaten to or dismiss an employee simply due to the employee's desire to seek legal advice, it is not unknown that an employee might allege such behaviour by the employer when an employment dispute is already on foot, or when an employee perceives their employment to be under threat. Employers must therefore ensure that any action taken that is prejudicial to an employee's interests cannot be regarded or found to have been taken due to the employee obtaining independent legal advice in relation to the dispute. Such risks can be minimised by expressly inviting an employee to seek legal advice, providing the employee with sufficient time to seek legal advice and provided any representative's response, and ensuring that policies are enforced consistently and without regard to external factors.

Refusal to follow unreasonable or unlawful direction

By contrast, the recent decision Daw v Schneider Electric (Australia) Pty Ltd [2013] FCCA 1341, confirmed that an employee's refusal to follow an unreasonable or unlawful direction does not entitle the employee to any protection against adverse action by reason of that refusal.

In this case, the employee was dismissed following his refusal to follow instructions that would have resulted in a breach of a Queensland law relating to the provision of professional engineering services. In this case, Justice Jarrett of the Federal Circuit Court accepted that the employer's direction constituted an unlawful direction, but rejected the argument that the employee's refusal constituted the exercise of a workplace right for the purpose of the FW Act, as the QLD law concerned was not a 'workplace law' for the purpose of section 341(1)(a). Nor could the refusal be reasonably seen to constitute a complaint or inquiry in relation to the employee's employment. The employee did make a separate complaint to the employer about his supervisor, but the Court found that this complaint did not contribute to the employee's dismissal, and in fact the employer demonstrated that it intended to properly investigate the allegations.

In ruling for the employer, Justice Jarrett nevertheless made it clear that the decision did not modify the long-established contractual principle that an employee must obey the directions and instructions of the employer, provided that those directions are lawful and reasonable, and fall within the scope of the contract of service. That observation by his Honour suggests that the employee may well have had a remedy against the employer for breach of contract, even though he had no claim in respect of the adverse action.

Protection arising as a consequence of the anti-bullying jurisdiction

Employers should also be aware that the protections against adverse action by reason of a workplace right may be of particular significance when the Fair Work Commission's anti-bullying jurisdiction introduced by the Fair Work Amendment Act 2013 commences on 1 January 2014. Under this new regime, the Fair Work Commission is empowered to investigate allegations of bullying made by a worker (which includes employees, subcontractors, apprentices and volunteers), make findings that a person or persons have engaged in bullying, and make orders directing the person or persons to stop the bullying. However, the Commission has no power to order reinstatement in employment or award compensation for such bullying.

The amended FW Act defines bullying as 'the repeated unreasonable behaviour directed towards a worker or group of workers... that creates a risk to their health and safety'. In possible anticipation of the likely volume of applications arising out of disciplinary action and performance management, bullying is defined to exclude 'reasonable management action carried out in a reasonable manner'. However, the amended FW Act does not define 'reasonable management action', and an aggrieved employee will not need to prove that management action was unreasonable as a precondition to lodging an application.

It is clear from a reading of section 341(1) of the FW Act that the lodging of an application under the new anti-bullying regime would constitute the initiation of a process or proceeding under a workplace law, and thus amount to the exercise of a workplace right. Furthermore, any threat by a worker that s/he intends to lodge such an application would also constitute the exercise of a workplace right. As a consequence of section 340, it is not necessary for the worker to actually exercise the right – he or she would be protected from adverse action simply by virtue of the fact that he or she can, or proposes to, initiate or participate in a process under a workplace law. Of particular concern is the fact that an application filed pursuant to the FW Act anti-bullying provisions need not be successful or even have any reasonable prospects of success - the application is sufficient to give rise to additional rights and protections for the worker.

As it is likely that many bullying applications under these provisions will be initiated as a result of disciplinary action taken against a worker, any application lodged by the worker may have the potential to stymie or complicate the employer's ability to maintain a disciplinary process, even in circumstances where the employer's actions are ultimately found to be reasonable. Employers will have to be cognisant of the reverse onus applicable to General Protections applications and ensure that any disciplinary action taken against a worker following the filing of a bullying application cannot be seen to be referable to the application itself.

Vigilance will be required

Given the generality of what constitutes a 'workplace right', employers will need to be vigilant as to the various workplace rights enjoyed or exercisable by employees and workers.

Employers will also need to be aware of the circumstances that may give rise to new and additional protections against adverse action, particularly when disputes emerge over terms and conditions or the reasonableness of performance management and disciplinary action. They should seek to minimise the risk of General Protections claims by instituting and adhering to appropriately drafted policies and procedures, and keeping detailed file notes of meetings and disciplinary action plans. Employers should also ensure that any employee complaints and inquiries are dealt with promptly independent of any ongoing workplace dispute.

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

Click to Login as an existing user or Register so you can print this article.

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”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.