Workplace relations expert Professor Andrew Stewart says he was not surprised by a Federal Court decision which ruled people covered only by common law contracts are unable to lodge adverse action claims. “It was a very creative interpretation that the applicant advanced and if accepted it would have had profound implications for employment litigation,” Stewart told Workforce Daily.
Recently Justice John Mansfield ruled Philip Barnett could not make an adverse action claim against the Territory Insurance Office as he was employed under a common law contract and not a ‘workplace instrument’ (WF17885).
“It’s certainly a very important decision but it is not a surprising decision,” Stewart said. Stewart said had Barnett succeeded in his claim, it would have had wide implications. All written contracts would effectively be workplace instruments, he said, and workers would have all of the rights of workplace instruments. “So virtually any type of employment dispute could be taken as a general protections claim,” he said.
But Stewart said Barnett had not raised a “fanciful argument” as the Act had no definition of the word ‘instrument’. “There was a plausible argument … but Justice Mansfield ruled in my view correctly,” he said. Stewart said it was clear that parliament had not intended for workplace instruments to be expanded to cover all written contracts.
Barnett’s lawyer – Alan Foster of Foster Nicholson Legal inMelbourne – said his client had not yet given instructions on an appeal. But Stewart said if an appeal is launched “the chances are quite strong that it will be upheld on appeal because the reasoning was very sound”.
Stewart said this decision highlights the varied interpretations of the new adverse action provisions of the FW Act. There were many other aspects of adverse action sparking debate in the IR community, he said, including the scope of the prohibitions on discrimination.
Source: Thomson Reuters Workforce news, 30 August 2011.
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