Inquiry by a prospective employee not “protected” under Fair Work Act
By Andrew Piper and Alex Millman, NRA Legal
In a fascinating case before the Federal Court of Australia, Justice Steward considered whether a prospective employee has a workplace right to make inquiries about their prospective employment.
Such a question obviously has significant ramifications for how an employer conducts itself when negotiating contract terms with prospective employees.
Background to the case
In March 2019, Ms Maric was offered the position of Health, Safety and Environmental Specialist by Ericsson Australia Pty Ltd (Ericsson Australia). She was sent an employment contract that she did not sign. Instead, she sought legal advice in relation to the proposed contract before requesting that it be amended.
She also made certain requests concerning how her workstation would be set up. She wanted her workstation to be set up ergonomically to accommodate her pre-existing back and knee injuries.
She further requested information about whether her employment would be covered by an award or enterprise agreement.
Ericsson Australia declined these requests from Ms Maric and then informed her that they would not be employing her, effectively withdrawing the offer of employment.
In response, Ms Maric brought a general protections claim in the Federal Court against Ericsson Australia. She did so alleging that Ericsson Australia had taken adverse action against her by deciding not to employ her after she made these requests while negotiating the terms of her prospective employment.
What is the workplace right?
The workplace right at issue in this case was the right to make an inquiry. Specifically,
section 341(1)(c) of the FW Act outlines that a person has a workplace right if the person:
(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.
For instance, an employee covered by a modern award has the capacity under the Fair Work Act to seek that their employer comply with the award. If an employee was terminated because they made a complaint to their employer about non-compliance with the applicable award then that employee may be able to make a general protections claim as a result.
The issue in this case determined the extent to which the workplace right to make an ‘inquiry’ extends to prospective employees.
Workplace rights for prospective employees
Section 341(3) of the FW Act provides that a prospective employee is taken to have the workplace rights he or she would have if he or she had already gotten the job.
This makes it difficult to define where a prospective employee’s rights start and end, as the imaginary scenario created is hard to reconcile with reality.
In this case, Justice Steward needed to decide two questions:
- whether a prospective employee has a workplace right to make an inquiry about their prospective employment; and
- for a prospective employee, what types of inquiries would be a ‘complaint or inquiry’ for the purposes of section 341(1)(c)(ii) of the FW Act.
In considering the second question, the Court concluded that the FW Act did not confer a right upon Ms Maric to seek legal advice in respect of the proposed contract nor to request information about whether the position would be covered by a modern award or enterprise agreement.
Reaching this conclusion meant that Justice Steward did not need to reach any conclusions in regards to the first question concerning whether a prospective employee has a workplace right to make an inquiry in relation to their prospective employment. However, his Honour did choose to provide some useful guidance on the point.
In answering the first question Justice Steward needed to resolve an apparent inconsistency in the FW Act.
Under section 341(3) a prospective employee is taken to have the same workplace rights as if they were employed by the employer. However, section 341(1)(c)(ii) specifically states that a person has a workplace right to make a complaint or inquiry in relation to his or her employment ‘if the person is an employee’.
Ms Maric argued that as a prospective employee, who is taken to have the same workplace rights as if she was employed, it should be assumed that she is an employee for the purposes of this section.
Unfortunately for Ms Maric his Honour disagreed. Justice Steward concluded that it was the Parliament’s intention that the wording ‘if the person is an employee’ deliberately excludes prospective employees.
Takeaways for employers
While the parties had agreed for the matter to be referred to mediation once these questions put to his Honour were settled, it appears that Ms Maric’s general protections claim did not have strong prospects of success. Other elements of her case, including claims under the Australian Consumer Law, were not examined by the court at this stage of the proceedings.
However, employers should carefully note that while this particular claim appears not to have been successful, Justice Steward observed that the employee did not bring a claim under anti-discrimination laws. Such a claim may have had significantly better prospects of success.
The circumstances in which general protections claims or anti-discrimination complaints can be made are constantly evolving and it is absolutely essential to have access to specialist advice in this area in order to safely navigate through such issues.
If you need assistance in understanding the scope of your employees’ workplace rights or in defending a general protections claim, contact NRA Legal’s team of workplace relations advisors on 1800 572 679.