On 9 April 2020 the Federal Court of Australia determined a general protections claims in Maric v Ericsson Australia Pty Ltd [2020] FCA 452 in what the Court described as an “unusual case”. The Court determined whether or not the protections afforded by the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) extend to a prospective employee when they make an inquiry regarding prospective employment with a prospective employer.

Relevant Facts

The Applicant made some “inquiries” in respect of her prospective employment with the Respondent. The inquiries followed the Respondent offering the Applicant employment as the Company’s Health and Safety Environmental Specialist, the terms of which were set out in an Offer and a proposed Contract of Employment (Contract). The Applicant did not, at any time, sign a copy of the Contract.

The Applicant claimed that she had sought legal advice in relation to the proposed Contract and subsequently requested some amendments be made to the Contract. The Applicant requested that her work station be set up ergonomically because of some pre-existing injuries she had sustained to her back and knee. The Applicant asked a question about whether her employment would be covered by a modern award or enterprise agreement. Shortly following these inquires, the Respondent advised the Applicant that it would not make the requested amendments to the Contract and it had decided not to employ her.

In the proceedings, the Applicant alleged that the Respondent had taken adverse action against her by deciding not to hire her after she had exercised her workplace right to make inquiries in relation to her prospective employment.

Issues

As agreed by the parties, the Federal Court considered two questions of law:

  1. As a prospective employee of the Respondent, did the Applicant have a workplace right constituted by her being able to make a complaint or inquiry in relation to her prospective employment?
  2. If yes, are the inquiries either on their own or combined capable of being a complaint or inquiry within the meaning of the FW Act?

Section 341(c) of the FW Act states that a person has a workplace right if the person is able to make a complaint or inquiry:

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

Section 341(3) of the FW Act states that 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.

Consideration by the Court

The Court addressed the second question of law first and ultimately decided that it was not necessary to address the first question of law. Steward J noted it was “convenient” to answer the second question first “on the assumption that it is possible for the “statutory fiction set out at section 341(3) of the FW Act to apply to an inquiry which engages section 341(c)(ii) of the FW Act”.

His Honour was not convinced that each of the alleged inquiries were capable of being “inquiries” for the purposes of section 341(c)(ii) of the FW Act. His Honour considered that the ability to make an inquiry in relation to employment must be founded on a source of entitlement, instrumental or otherwise.

Given the Applicant had not agreed to the terms of the Contract, the Applicant had no legal rights under the Contract.

His Honour considered the construction of the “statutory fiction” created by section 341(3) of the FW Act “the prospective employee “is taken to have the workplace rights” they would have “if she or he were employed”. The Applicant did not at any time agree to the terms of the Contract, nor were her proposed amendments accepted by the Respondent. Therefore, the Contract could not be the source of an ability to make an inquiry in respect of the employment as the Applicant was not an employee of the Company. His Honour also considered the argument that the Applicant’s entitlement to make some of her inquiries in relation to her prospective employment was sourced in legislation. However, his Honour found it difficult to identify relevant provisions in such legislation that conferred any additional legal ability to make a request (or inquiry) that she made.

Conclusion

The Court held:

  • the Offer and the proposed Contract of Employment did not confer on the Applicant an ability, and entitlement, to seek legal advice and request amendments to the Contract;
  • the Applicant was not entitled to request her work station be set up ergonomically by virtue of the Equal Opportunity Act 2010 (Vic) and the Disability Discrimination Act 1992 (Cth); and
  • the FW Act did not confer an entitlement on the Applicant to ask questions about whether her employment was covered by a modern award or enterprise agreement.

His Honour noted that “a prospective employee enjoys the liberty of making any inquiry he or she feels the need to make of his or her prospective employment”.

His Honour stated there are real difficulties in applying section 341(c)(ii) to pre-contractual negotiations:

  • the general protection given to the making of inquiries is expressly limited to those made by employees;
  • to the extent that there may be a conflict in the scope of sections 341(3) and 341(c)(ii), that conflict might be resolved by reading down one of the provisions;
  • the leading provision must be section 341(c)(ii), and section 341(3) must “give way” to its operation; and
  • the inquiries made by the Applicant were in relation to her “fictional employment” as mandated by section 341(3) of the FW Act.

Matter to proceed to mediation

His Honour did not make any order as to costs, as agreed by the parties. However, his Honour’s final remarks, in accordance with the wishes of the parties, were to order that “the matter proceed to mediation even in the face of what may be a “limping appeal” from this decision”.

Take away for employers

It is often a normal occurrence for parties to engage in pre-employment contractual negotiations. As was seen in this case, the practice of bargaining about conditions of employment, whether in the form of an inquiry of those conditions, is not likely to give rise to the exercise of a workplace right as envisaged in section 341 of the FW Act. However, there may be other statutes or instruments which a prospective employee may rely on to make a claim against a prospective employer in respect of such inquiries, such as the Australian Consumer Law. If employers are concerned about the conduct of any pre-contractual negotiations, they should seek advice.

If you would like more information about the ability of a person to exercise a workplace right in relation to your business and the general protections or adverse action provisions of the FW Act, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice about drafting employment contracts or conducting contractual negotiations please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or contact Ai Group Workplace Lawyers here.

By Monica Wilkie

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