The Law Handbook 2024

Chapter 11.6: Protection for your rights at work 1071 Stand downs under the Fair Work Act In contrast to the common law position on stand downs, Part 3-5 of the FW Act allows an employer to stand down an employee during a period in which the employee cannot be usefully employed. Under the FW Act, the circumstances in which an employee can be stood down include industrial action, machinery breakdown, or a stoppage of work for any cause for which the employer cannot reasonably be held responsible. In these circumstances, the employer is not required to pay the employee for the stand down period (s 524). The full Federal Court of Australia’s decision of Communications, Electrical, Electronic, Energy, Informa- tion, Postal, Plumbing and Allied Services Union of Aust- ralia v QANTAS Airways Limited [2020] FCAFC 205 confirmed that employees are not entitled to access personal/carer’s leave (also known as sick leave) or compassionate leave during a period in which they are stood down without pay under the FW Act. Protections in the Fair Work Act General protections Part 3-1 of the FW Act – under the heading ‘Rights and responsibilities of employees, employers, organisations, etc.’ – sets out what it describes as ‘general protections’. The explanatory memorandum to the FW Act describes the purpose of the general protections as ensuring ‘fairness and representation at the workplace by recognising the right to freedom of association and preventing discrimination and other unfair treatment’. General protection: Workplace rights One general protection provided for by Part 3-1 of the FWAct is a prohibition on a person taking adverse action against another person because the other person has a workplace right or has exercised, or proposes to exercise, a workplace right (s 340). What is a workplace right? A ‘workplace right’ is defined by the FW Act as including: a the entitlement to the benefit of, or a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; b initiating, or participating in, a process or proceeding under a workplace law or workplace instrument (see the definition below); or c the ability to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument or an inquiry by an employee in relation to their employment (s 341(1)), if the person is an employee. The FW Act defines a ‘process or proceeding under a workplace law or a workplace instrument’ as including: • court proceedings; • protected industrial action; • a protected action ballot; and • making, varying or terminating an enterprise agreement and other matters (s 341(2)). What is adverse action? Section 342 of the FW Act defines ‘adverse action’ in the circumstances of different employer–employee relationships. Adverse actions taken by an employer against an employee include: • dismissing the employee; • injuring the employee in their employment; • altering the position of the employee to the employee’s prejudice; or • discriminating between the employee and other employees of the employer. For more information about adverse actions, see the FWC’s publication, General Protections Benchbook (available at www.fwc.gov.au/benchbook/general- protections-benchbook) . General protection: Industrial activities Part 3-1 of the FW Act (s 346) provides that a person must not take adverse action against another person because the other person: • is or is not, or was or was not, an officer or member of an industrial association; • engages in, or has at any time engaged in or proposed to engage in, industrial activity; or