The Federal Circuit and Family Court of Australia (Court) has provided employers with useful guidance on what constitutes the exercise of a workplace right in the context of pre-employment contract discussions, confirming that questions about a proposed employment contract by a prospective employee do not constitute the exercise of a workplace right unless those questions are linked to an enforceable legal entitlement.
What happened?
The Respondent, Meat Inspectors Pty Ltd (Meat Inspectors) is a provider of meat inspection and certification services across Australia. In early 2023, Meat Inspectors contracted with Hardwicks Meatworks Pty Ltd (Hardwicks) to provide these services at Hardwicks’ facility in Kyneton, Victoria. As a result, several meat inspectors employed by Hardwicks, including the Applicant in the proceedings, Stephen Leight, were offered employment by Meat Inspectors.
Mr Leight, a longstanding member of the Australasian Meat Industry Employees’ Union (Union), received a letter of offer and a proposed employment contract from Meat Inspectors in February 2023 (Offer). After receiving advice from the Union, Mr Leight made several inquiries about the terms of the proposed contract. The Union also corresponded with Meat Inspectors about the Offer. Meat Inspectors answered the questions posed by Mr Leight and the Union, however, Mr Leight did not accept the Offer or give Meat Inspectors any indication as to his intentions in respect of the Offer.
Meat Inspectors subsequently withdrew the Offer in March 2023, after Mr Leight did not respond to it for several weeks. Mr Leight later commenced proceedings in the Court, alleging that the withdrawal of the Offer constituted unlawful adverse action in contravention of the Fair Work Act 2009 (Cth) (FW Act).
The proceedings
Mr Leight’s case was that:
- by making inquiries about the terms of the proposed contract, he (and/or the Union which had sent emails to Meat Inspectors on Mr Leight’s behalf) had exercised a workplace right pursuant to s341(1)(c) of the FW Act;
- by engaging with the Union and the Union sending an email on his behalf, he had engaged in industrial activity by seeking to be represented by an industrial association pursuant to s347(b)(vii) of the FW Act; and
- the Offer had been withdrawn as a result of Mr Leight’s alleged exercise of workplace rights and industrial activity and was therefore unlawful adverse action in contravention of s340 of the FW Act.
Meat Inspectors contended that whilst Mr Leight had made inquiries (not complaints), they were not inquiries within the meaning of s341(1)(c)(ii) of the FW Act because they were made in respect of the Offer contained within the proposed contract and were not founded on, sourced, or anchored in an “entitlement” so as to constitute the making of an inquiry constituting the exercise of a workplace right.
The decision
The Court was required to consider whether Mr Leight had in fact exercised a workplace right pursuant to s341(1)(c), and, whether he had engaged in industrial activity. If Mr Leight had, then the Court needed to consider whether Meat Inspectors had withdrawn the Offer because Mr Leight had exercised his workplace rights and engaged in industrial activity.
The Court ultimately held that Mr Leight had not made any complaints or inquiries which invoked s341(1)(c)(ii). Rather, it found that the correspondence sent by Mr Leight and the Union lacked the necessary qualities to be a “complaint” and resembled an inquiry. However, it determined that an “inquiry” is only a protected workplace right under s341(1)(c)(ii) if it is anchored to a legal entitlement. In Mr Leight’s case, he was a prospective employee with no enforceable contract or entitlement at the time. It naturally followed that his questions related to a proposed contract and there was therefore no exercise of a workplace right.
Although s341(3) provides for a prospective employee to have protection against adverse action that is connected to workplace rights they would gain once employed, in Mr Leight’s case, because there was no settled contract, the Court could not assume what terms would apply and what rights would exist if the employment had commenced. As a result, s341(3) did not assist Mr Leight.
Finally, whilst the Court accepted that Mr Leight had sought the assistance of the Union, this did not automatically constitute engagement in protected industrial activity. Rather, the engagement with the Union was merely part of pre-contract negotiations and not protected industrial activity pursuant to s346 of the FW Act.
The result of the Court’s findings (i.e. that Mr Leight had not exercised a workplace right and/or engaged in protected industrial activity) was that the reverse onus of proof that usually applies in general protections cases was not enlivened. That is, Meat Inspectors did not have a case to answer.
It was also noted by the Court that, even if the reverse onus was enlivened (that is, if Mr Leight had indeed exercised a workplace right and participated in industrial activity), Meat Inspectors would have successfully rebutted the reverse onus because it was able to demonstrate that the operative reason for withdrawing the Offer was that it had an operational need to fill the role as soon as possible, and Mr Leight had not provided any indication of his intentions concerning the Offer and had not responded to the Offer for several weeks.
So, what does this mean for employers?
This case has provided clarity on when pre-employment discussions with a prospective employee constitute the exercise of a workplace right. Inquiries made by a prospective employee are not automatically “protected” inquiries for the purpose of s341(1)(c)(ii) unless there is a link to a legally enforceable entitlement (which may include questions about minimum legal entitlements, such as minimum wages and entitlement to leave under the National Employment Standards).
Employers should, however, be mindful that the withdrawal of an offer of employment should always be for a lawful and reasonable reason that is unrelated to any protected rights or attributes. In this case, the evidence demonstrated that the withdrawal of the Offer was clearly due to genuine operational reasons to fill the role as soon as possible and therefore, even if it were found that Mr Leight had exercised a workplace right, Meat Inspectors would have been able to rebut the reverse onus of proof.
The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.