Under the general protection provisions in the Fair Work Act 2009 (Cth) (“FW Act”), employers are prohibited from taking adverse action against both employees and prospective employees. A case in the Federal Circuit and Family Court of Australia (the “Court”) considered whether a prospective employee had been subjected to adverse action when the prospective employer withdrew its offer of employment.

Background

The prospective employee had been made redundant as his role was being outsourced. The company that was taking on the outsourcing, the prospective employer, offered the prospective employee a contract of employment on 14 February 2023. Following this was a period of negotiation in relation to the terms of the contract. The prospective employee asked his union to correspond with the prospective employer on his behalf and the union raised a number of queries in relation to the terms of the contract, including, the probationary period, personal/carer’s leave and the rates of pay under the enterprise agreement. The prospective employer responded to the questions but did not receive any response from the prospective employee or the union.

By 24 March 2023 the prospective employee had still not accepted the offer, and it was withdrawn by the prospective employer.

The prospective employee claimed that the withdrawal of the offer of employment constituted adverse action. He claimed that he had a workplace right to make a complaint or inquiry in relation to his employment and to be represented by the union. He claimed he had been treated adversely for exercising those workplace rights.

What did the Court say?

The Court accepted that the prospective employer’s action of withdrawing the offer of employment was “uncontroversially adverse action”. But the Court had to consider why this had occurred. The prospective employee asserted that adverse action had been taken because he had:

• exercised a workplace right by complaints or inquiries being made in relation to his employment; and/or
• engaged in an industrial activity by being represented by the union.

The Court had to turn its mind to whether an “inquiry” or “complaint” can be general in nature, or whether it has to have a relevant source such as an industrial instrument. While the prospective employer accepted that the prospective employee had made inquiries, it did not accept that these were the types of inquiries that were protected by the FW Act.

The Court examined the emails sent by the union and noted that they did not use the language of a complaint, there was no “expression of discontent” and there was no specific grievance raised.

While it was accepted that it was an “inquiry”, the Court found that the right to inquire needs to be “anchored in a legal entitlement” like a statute, contract, modern award or enterprise agreement – none of which applied here. Simply having something to complain or inquire about is not enough to amount to an entitlement.

In relation to the prospective employee engaging in an industrial activity, the Court found that the email was not conduct that met the definition of engaging in an industrial activity and there were further issues with how the prospective employee framed his case in relation to this issue.

Do prospective employees have a workplace right of complaint or inquiry?

The Court considered the rights of prospective employees. The FW Act specifically 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.” However, there is still some debate about how the various sections of the FW Act apply and specifically whether a prospective employee has the ability to make a complaint or inquiry in relation to his or her employment (given there is no employment on foot).

The decision

The Court found in favour of the prospective employer and the application was dismissed.

It is important to note that the Court accepted that there were genuine operational reasons for the prospective employer withdrawing the offer. Several weeks had passed since the offer of employment had been made and the prospective employee had not given any indication as to whether he would accept the offer.