What is a workplace right?

Workplace rights can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements. Section 341 of the Fair Work Act 2009 (Cth) sets out the following categories of workplace rights:

The workplace rights protections prohibit taking adverse action against a person because they have a workplace right or because they do (or do not) exercise their workplace right.

Workplace rights are wide ranging. An example of a workplace right is the prohibition against pay secrecy. An employee is permitted to disclose (or not disclose if they wish) any details about their pay or remuneration, as well as the terms of their employment, regardless of any pay secrecy terms in their contract of employment [ss 333B and 333C].

What is adverse action?

The general protections provisions protect people from adverse action. This is a key definition that intersects with a number of the protections.

What constitutes adverse action in a particular case depends on the nature of the relationship between the relevant persons. For example, adverse action taken by an employer against an employee includes dismissal, discrimination, refusing to employ a person, or prejudicially altering the position of the person [s 342].

The definition covers certain conduct of employers, employees, industrial associations, independent contractors and principals. It also extends to protect prospective employees from adverse action in certain circumstances [s 342].

What are industrial activities?

The industrial activities protections encompass a person’s freedom to be or not be a member or officer of an industrial association and participation or non-participation in certain industrial activities (for example, refusal to take part in industrial action). The protections prevent adverse action being taken against a person in connection with these industrial activities. The protections also prohibit incentives in relation to a decision to become or not become a member of an industrial association [s 350].

Coercion, misrepresentation and undue influence or pressure

Coercion and misrepresentation in relation to workplace rights and industrial activities is also prohibited [ss 344, 348 - 349]. For example:

Protections

Employees and prospective employees are protected from workplace discrimination on the grounds of race, colour, sex, sexual preference, age, disability, marital status, pregnancy, subjection to family or domestic violence, family or carer’s responsibilities, religion, political opinion, national extraction or social origin. The general protections prohibit all adverse action (such as victimisation and refusing to employ), not just dismissal, on discriminatory grounds.

The unlawful termination protections for discriminatory reasons (such as race, colour and sex) have been retained for non-national system employers, however the protection is limited to protection from dismissal.

The general protections also prohibit a person from discriminating against an employer for reasons including that employees of the employer are covered, or are not covered, by a particular type of workplace instrument (for example, coverage by a modern award instead of an enterprise agreement).

There are also protections to prohibit coercion of a person to make or not make certain employment or management decisions (for example, to allocate particular duties to a particular employee).

A employer is further prohibited from taking adverse action against a casual employee for making a request for casual conversion (a National Employment Standard under Division 4A of the Fair Work Act 2009 (Cth)).

Sham contracting

There are protections against sham contracting. This is where employers try to disguise genuine employment arrangements as independent contracting arrangements [see ss 357 - 359].

To see if this affects you, visit the Fair Work Ombudsman's website.

Right to disconnect

In 2024 the Fair Work Act 2009 (Cth) introduced the 'right to disconnect'. Eligible employees may refuse to monitor, read or respond to contact or attempted contact from their employer or a third party outside of their working hours, unless refusal is unreasonable [s 333M(1), (2)]. This permits an eligible employee to ignore work-related calls, emails, text messages or other contact, unless such action is unreasonable.

Whether an employee's refusal to monitor, read or respond to contact from an employer or third party is unreasonable will depend on the circumstances of the case and factors including [s 333M(3)]:

The right to disconnect applies to employees of non-small business employers (15 or more employees) from 26 August 2024 and to employees of small business employers from 26 August 2025. For more information and resources, visit the Fair Work Ombudsman's website.

What if I believe these protections have been breached?

Where a person alleges a contravention of the general protections, the Fair Work Commission can hold a conference to attempt to resolve the matter. In cases involving dismissal, the conference is mandatory. In all other cases, participation in a Fair Work Commission conference is voluntary and a person can elect to proceed directly to court instead.

Where a person is dismissed from employment, a Fair Work Commission application to hold a conference must be made within 21 days of a dismissal. If the matter cannot be resolved at the conference, the person may apply to the Fair Work Division of the Federal Court or Division 2 of the Federal Circuit and Family Court for a remedy.

Available remedies include monetary penalties, injunctions, compensation, and reinstatement in the case of dismissal. Costs will only be awarded if the proceedings were instituted vexatiously, the costs were incurred due an unreasonable act by the other party, or one party unreasonably refused to participate in the Fair Work Commission's proceedings.

A guide to general protections applications is available on the Fair Work Commission's website.