See Fair Work Act s.341
A person has a workplace right if the person:
A workplace law is a law that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
Workers’ compensation laws are directed to matters that both regulate and define the employer/employee relationship and therefore fall within the definition of ‘workplace law’.
The fact that a law regulates other relationships as well as the employment relationship does not take it outside the definition of workplace law. The Equal Opportunity Act has been found to be a workplace law.
The Privacy Act has been found not to be a workplace law as it does not regulate the relationship between employers and employees.
A particular provision within an Act or regulation could be said to regulate the relationship between employers and employees, even though the Act or the regulations as a whole do not.
A workplace law must be a statute law (including delegated legislation). It does not generally include rights arising under contracts of employment or other common law rights.
A workplace instrument is an instrument that is made under, or recognised by a workplace law and concerns the relationships between employers and employees.
The term ‘workplace instrument’ does not apply to the contract of employment itself.
A workplace instrument usually refers to an enterprise agreement or an award.
Industrial body means:
Other bodies that can be considered ‘industrial bodies’ are:
It has been accepted that the role of a bargaining representative is a role or responsibility under a workplace law.
An obligation to ensure workplace safety as a Health and Safety Officer is also a role or responsibility under a workplace law.
A person exercises a workplace right where they make a complaint or inquiry to a body having capacity to seek compliance with the law or a workplace instrument, even when the complaint concerns other employees.
A person exercises a workplace right where they make a complaint or inquiry in relation to their employment. The Fair Work Act does not restrict the person or body to whom such a complaint or inquiry could be directed. It can include situations where an employee makes an inquiry or complaint to his or her employer. Seeking legal advice in relation to a person’s employment also falls within the meaning of a complaint or inquiry.
Although the words ‘is able to’ are taken to have a broad meaning, in order for the complaint or inquiry to be considered a workplace right, it is necessary that the complaint or inquiry concerns and is confined to the person’s employment.
In Evans v Trilab Pty Ltd the Federal Circuit Court found that a complaint or inquiry need:
Having reviewed the authorities Dodds-Streeton J held that a complaint could be treated as having been made if the ‘relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint’.
is provided in the Explanatory Memorandum:
Freddy works part-time at a petrol station. He believes he is not being paid the correct award rate for a console operator. He writes a letter of complaint to the Australian Competition and Consumer Commission (ACCC) as he mistakenly believes that it is able to investigate wage underpayments. Freddy tells his manager about the letter. Following this, his hours for the next fortnight are cut in half. While the complaint would not be covered by subparagraph 341(1)(c)(i) as the ACCC does not have the capacity under a workplace law to seek compliance with the applicable award, Freddy would still have exercised a workplace right because he has made a complaint regarding his employment (subparagraph 341(1)(c)(ii)).
Each of the following is a process or proceedings under a workplace law or instrument:
Industrial action by an employee is:
Industrial action by employees is protected industrial action if it is ‘employee claim action’ or ‘employee response action’ for a proposed agreement. Employee claim action is action organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement. Employee response action is action organised or engaged in as a response to industrial action by an employer.
Industrial action may be taken by an employer and most commonly takes the form of a lockout of employees. It is protected if it is ‘employer response action’, being industrial action organised or engaged in as a response to industrial action by a bargaining representative or by the employees.
For industrial action to be protected, the requirements in ss.413 and 414 of the Fair Work Act must be satisfied. Industrial action by employees must be authorised by a protected action ballot of employees in accordance with the requirement of Part 3‒3 Division 8 of the Fair Work Act.
The wearing of union campaign clothing may constitute industrial action, depending on the circumstances. If an employee is only prepared to perform work if they are wearing a particular item of clothing then they are placing a limitation or restriction on the performance of work or on the acceptance or offering of work and therefore engaging in industrial action.
Wearing particular clothing whilst performing work has nothing to do with the manner in which the work is performed and will not constitute industrial action if wearing the clothing does not amount to banning the performance of the work, limiting the performance of the work or restricting the performance of the work. There may be situations where particular work can only be performed whilst wearing certain clothing, such as personal protective equipment, and the refusal to wear that clothing could affect the manner in which the work is being performed and result in a restriction or limitation on, or delay in, the performance of the work.
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.
 Fair Work Act s.12.
 Fair Work Act s.12.
 Barnett v Territory Insurance Office (2011) 211 IR 439; cited in Atkinson v Vmoto Limited  FWA 9043 (unreported, Spencer C, 26 October 2012) ; Bayford v Maxxia Pty Ltd (2011) 207 IR 50 .
 Fair Work Act s.12.
 Hodkinson v The Commonwealth  FMCA 171 (31 March 2011) at para. 131, [(2011) 207 IR 129].; Devonshire v Magellan Powertronics  FMCA 207 (11 April 2013) at para. 63, [(2013) 231 IR 198].
 Harrison v In Control Pty Ltd (2013) 273 FLR 190 ; citing Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 .
  FCCA 2464 ; citing Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 –; and Walsh v Greater Metropolitan Cemeteries Trust (No. 2)  FCA 456 , .
 ibid., .
 Explanatory Memorandum to Fair Work Bill 2008 .
 Fair Work Act s.341(2).
 Fair Work Act s.19(1)(a)‒(c).
 Fair Work Act s.408.
 Fair Work Act s.409.
 Fair Work Act s.410.
 Fair Work Act s.411.
 Mornington Peninsula Shire Council  FWAFB 4809 (unreported, Watson SDP, Kaufman SDP, Gooley C, 22 July 2011) .