Commonwealth Consolidated Acts

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FAIR WORK ACT 2009 - SECT 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);

                      (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).



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