Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 341

Meaning of workplace right

  (1)   A person has a workplace right if the person:

  (a)   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; or

  (b)   is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

  (c)   is able to make a complaint or inquiry:

  (i)   to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

  (ii)   if the person is an employee--in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

  (2)   Each of the following is a process or proceedings under a workplace law or workplace instrument :

  (a)   a conference conducted or hearing held by the FWC;

  (b)   court proceedings under a workplace law or workplace instrument;

  (c)   protected industrial action;

  (d)   a protected action ballot;

  (e)   making, varying or terminating an enterprise agreement;

  (f)   appointing, or terminating the appointment of, a bargaining representative;

  (g)   making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

  (h)   agreeing to cash out paid annual leave or paid personal/carer's leave;

  (i)   making a request under Division   4 of Part   2 - 2 (which deals with requests for flexible working arrangements);

  (j)   dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

  (k)   any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

  (3)   A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note:   Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees

  (4)   Despite subsection   (3), a prospective employer does not contravene subsection   340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

  (5)   Despite paragraph   (1)(a), a prospective employer does not contravene subsection   340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part   2 - 8 or 6 - 3A (which deal with transfer of business).