Workplace rights; what are they?

Here is a useful analysis of what constitutes a workplace right drawn from  a recent Federal Court case.

“By s 12 of the FWA, “workplace right” is defined by s 341(1), which provides:

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: …

Also relevant to Mr Tyson’s argument on the cross-appeal is s 341(2), which defines what is “a process or proceedings under a workplace law or workplace instrument” but does so, given s 341(2)(k), “any other process or proceedings under a workplace law or workplace instrument”, in a way which is ultimately open-ended.

The conclusion of the learned primary judge (see reasons for judgment, [113] – [115]) was that ending union membership did not amount to a process or proceedings under workplace law or workplace instrument, even given the generality of s 341(2)(k), but rather that it fell squarely within “industrial activity”, as defined by s 347(a). That same reasoning would necessarily support his Honour’s identified object of the coercion, namely, the (re)joining of the CFMEU.

Pointing to the generality of language in s 341(2)(k), Mr Tyson submitted that a “process”, which is under a “workplace law”, could comprehend membership or non-membership of a union. He submitted that it was “not appropriate” to treat s 341(1)(b) as excluded simply because the thus identified right appeared to be a “better fit” with s 347(a) of the FWA.

As to s 341(1)(a), Mr Tyson submitted that this paragraph is “even more broadly defined”, being inclusive of a “benefit” under a “workplace law”. By s 12 of the FWA, “workplace law” is defined as including both the FWA as well as the FWROA and any workplace instrument or order.

Mr Tyson submitted that the provisions in Pt 3-1 of the FWA were beneficial legislation and should therefore not be construed narrowly.

Apart from its opposition to the grant of leave, Heiko engaged fully with each limb of the cross-appeal. It submitted that the language of s 341(1)(b), “process or proceedings under a workplace law or workplace instrument” invokes “the notion of a procedure for engaging in a process for which provision is made under an enactment or industrial instrument, or proceedings before an industrial commission or court”. It submitted that support for this proposition is found in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473 (The Laverton North and Cheltenham Premises Case), at [162].

Heiko also submitted that the operative provisions in Divs 2 to 7 use the language of prohibition, such as “A person must not … ”.  It submitted that, if Mr Tyson were entitled to any benefit from those provisions, that benefit was solely protective. It was not an entitlement to a benefit which could be exercised.

Flowing from the protective language of prohibition, Heiko submitted, was an important distinction in relation to the alleged contravention of s 343 of the FWA. It submitted that, unlike s 340, which prohibits the taking of adverse action against another person not only because the other person has, or has not, exercised a workplace right, but also “because the other person … has a workplace right”, s 343 is far more limited. It is concerned not with taking action as reprisal for past conduct, but with action that seeks to influence future conduct. It only prohibits taking action with intent to coerce another person in relation to the exercise of a workplace right held by that person, not because they have a workplace right.

Heiko further submitted that the ground of cross-appeal relying on s 341(1)(a) was not made out by a reference, as was also made in Mr Tyson’s submissions, to Mr Tyson’s entitlement to apply for orders in relation to alleged contraventions of Pt 3-1, because it was never alleged in the court below that Heiko took action with intent to negate Mr Tyson’s choice about applying for orders in relation to alleged contraventions of Pt 3-1. This particular issue may be disposed of shortly. Not only was such a case never alleged but it was neither evidenced nor found. The object of Mr Barrios, as the transcript of the conversation of 27 April 2018 discloses, was never to negate Mr Tyson’s choice about applying for orders in relation to alleged contraventions of Pt 3-1.

The structure of Pt 3-1 of the FWA does not support the upholding of Mr Tyson’s cross appeal. While it is not necessary in the circumstances of this case to hold that there is a complete dichotomy, as a matter of general impression, Div 3 of Pt 3-1 contains prohibitions and related protections in relation to “workplace rights”, as defined, whereas Div 4 of that Part contains the like in relation to“ industrial activities”, as defined. The respective prohibitions on coercion, s 343 and s 348, conform to the overall structure of Pt 3-1.

Assuming that the right to join an industrial association could be regarded, in terms of s 341(1)(a) of the FWA, as a “benefit of … a workplace law”, because the rules of an industrial association are registered or taken to be registered under the FWROA, it was never the existence of such a right which was the object of the coercive threat. Heiko, by Mr Barrios, took the action it did to coerce Mr Tyson to exercise that right. In terms of s 347(a) of the FWA, the exercise of a right to become a member of an industrial association was to engage in “industrial activity”.

The position is no different if one looks to s 341(1)(b) of the FWA. Even if one assumes that the ability to make an application for membership of an industrial association, under and in accordance with its rules, might be described as an ability to initiate a process under a workplace law, once again because the rules of an industrial association are registered or taken to be registered under the FWROA, it was not the ability to initiate that process but rather coercing the initiation of the process which was the object of the threat.

Heiko’s point that the difference is between the existence of a right and the exercise of that right is therefore a good one.

In The Laverton North and Cheltenham Premises Case, at [162], Tracey J (with whom Allsop CJ and White J materially agreed) made some brief observations about s 341(1)(b) of the FWA, although it was not, as his Honour indicated, necessary for him to express any concluded view. His Honour expressed concurrence with a reservation voiced in the original jurisdiction in that case that the making of a request for the production of authority documents under s 489(2) of the FWA constitutes the initiation or participation in “a process or proceedings” of the kind contemplated by s 341(1)(b). His Honour noted, as is plainly the case, that such a request does not fall within paras (a) to (j) of s 341(2). He did not consider that the making of a request under s 489(2) constituted a process or proceeding under the FWA within the meaning of s 341(2)(k). That was because s 489(2) provided for the making of a request for production. That, observed Tracey J, “is a stand-alone provision which may be invoked when a permit holder enters premises for purposes identified in s 484. It forms no part of any process or proceeding in the senses in which those words are employed in the non-exhaustive definition in which they appear”. It is less easy to dismiss the making of a membership application for which registered rules provide as not amounting to a “process”. However, as already indicated, it was not the right to make a membership application or the ability to initiate a membership application which was the relevant object of the coercive threat. The object of the threat was to coerce the exercise of any such right or the taking up of any such ability.

It is, for these reasons, not necessary to decide whether the premises assumed in Mr Tyson’s favour in relation to the cross-appeal are correct. Even if they are, it was, as the learned primary judge correctly concluded, s 348, not s 343, of the FWA which was the applicable provision on the facts as found.

The cross-appeal should be dismissed.”



Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCAFC 208 delivered 25 November 2020 per Collier, Logan and Griffiths JJ