All employees have protected workplace rights. These protected workplace rights include:
- Workplace right place
- Taking or taking part in industrial activity
- Belonging or not belonging to an industrial association
- Being free from discrimination
Employees can’t be treated differently or worse because they possess or have exercised a right, or for a discriminatory reason.
Employees are protected from:
- Adverse action
- Undue influence or pressure
So what Rights are protected?
Employees or persons has a workplace right if they:
- Have a benefit, role, responsibilities under a Workplace law (Fair Work Act 2009, state/territory workers compensation legislation, instrument i.e an award or registered agreement or an order made by an industry body e.g Fair Work Commission.
- Can start or take part in a process or proceeding under the workplace law or instrument
- Can make a complaint or enquiry about their employment to a body
- An employee can make an enquiry or/and a complaint about their employment e.g an employee making an enquiry about their pay to their employer.
An employee has the right to belong to or not belong to an industrial association or employer association. Industrial activities include:
- Being involved in establishing a union or employer association
- Organizing, promoting, encouraging or participating in lawful activities for a union or employer association
- Representing the views, claims or interests of a union or employer association
- Complying with lawful requests made by a union or employer association
- Paying a fee to union or employer association
- Asking to be represented by a union or employer association
An employee has the right to be free from discrimination at work.
What is an employee protected from?
- Adverse action is action that is unlawful if it’s’ taken for particular reasons.
Adverse action include doing or threatening to do any of the following:
- Firing an employee for no reason
- Injuring an employee in their employment by not giving the employee their legal entitlements such as pay or leave
- Changing an employee’s job to their disadvantage
- Discriminating between employees
- Offering a potential employee different & unfair terms and conditions for the same job compared to other employees
- An employee or independent contractor taking industrial action against their employer of principal
Example of an adverse action:
Selena has lodged a request for assistance with the FairWork Ombudsman because she doesn’t think she is getting paid correctly. Once his employer finds out about the request for assistance, Selena was demoted and had her duties substantially changed.
This is adverse action against Selena because she used her right to ask about her pay. This is unlawful.
- Coercion means forcing someone to do something against their will, for example through fear, intimidation or threats.
A person can’t be forced to use or not a workplace right. For example, if an employee refuses to vote for an enterprise agreement, the employer can’t
- Threaten to sack the employee
- Threaten to demote the employee
- Changes their roster
The coercive behaviour may still be unlawful even if it wasn’t successful in forcing someone to do something against their will.
- Undue influence or pressure is when an employer uses their power to try to influence or pressure the employee to change their conditions of employment.
- Enter or not enter into an agreement under the National Employment Standards or an award or registered agreement
- Agree to, or terminate an individual flexibility arrangement
- Accept a guarantee of annual earning
- Agree or not agree to a deduction
Example of undue influence or pressure
John is covered by registered agreement which allows for annual leave cash out.
John’s manager, Ginnie approaches John about cashing out his annual leave. Ginnie tell John that because they are a small business, they would have to close temporarily to cover his absence.
If Ginnie made it clear to John that he was in no way obliged to cash out his leave and that Ginnie was just exploring all possible business options, her requests would unlikely be considered undue influence or pressure.
**The undue influence or pressure or coercion behaviour can be unlawful even if it
- Misrepresentation is when someone knowingly or recklessly makes a false or misleading representation to a person who would be expected to rely on that representation.
Example of misrepresentation:
Beth is a long-term casual employee. She is pregnant with her first child and asks her manager about parental leave entitlement. Beth’s manager tells her that only full-time employees are entitled to parental leave even though he knows it is true.
This is a misrepresentation and is unlawful.