341 Meaning of workplace right

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:

(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.

Meaning of process or proceedings under a workplace law or

workplace instrument

(2) Each of the following is a process or proceedings under a

workplace law or workplace instrument:

(a) a conference conducted or hearing held by the FWC;

(b) court proceedings under a workplace law or workplace

instrument;

(c) protected industrial action;

(d) a protected action ballot;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining

representative;

(g) making or terminating an individual flexibility arrangement

under a modern award or enterprise agreement;

(h) agreeing to cash out paid annual leave or paid

personal/carer’s leave;

(i) making a request under Division 4 of Part 2-2 (which deals

with requests for flexible working arrangements);

(ia) giving a notification, or receiving an offer or notice, under

Division 4A of Part 2-2 (which deals with casual

employment);

(j) dispute settlement for which provision is made by, or under,

a workplace law or workplace instrument;

(k) any other process or proceedings under a workplace law or

workplace instrument.

Prospective employees taken to have workplace rights

(3) 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.

Note: Among other things, the effect of this subsection would be to prevent

a prospective employer making an offer of employment conditional on

entering an individual flexibility arrangement.

Exceptions relating to prospective employees

(4) Despite subsection (3), a prospective employer does not contravene

subsection 340(1) if the prospective employer makes an offer of

employment conditional on the prospective employee accepting a

guarantee of annual earnings.

(5) Despite paragraph (1)(a), a prospective employer does not

contravene subsection 340(1) if the prospective employer refuses

to employ a prospective employee because the prospective

employee would be entitled to the benefit of Part 2-8 or 6-3A

(which deal with transfer of business).