We all have rights at work, but we'd often be forgiven for questioning this fact.
Many of us feel unprotected, unsafe, and discriminated against at work and despite having legal avenues "available" to us to pursue justice, for most of us, these avenues aren't "accessible".
The Fair Work Act 2009 protects certain rights that we are supposed to have at work. These include workplace rights (such as making a complaint, and discussing pay), the right to engage in industrial activities, the right to be free from unlawful discrimination, and the right to be free from undue influence or pressure in negotiating individual arrangements.
The Fair Work Act also is designed to protect workers from adverse action such as unfair dismissal, discrimination - including refusal to employ a prospective employee due to discrimination, and coercion (such as coercing an employee to use or not use a workplace right).
However, in reality, how often are these rights abused and the employer gets away with it? When it is one individual who has suffered an injustice, the answer to this question is "almost all of them."
It seems that it's only when more than one person is involved - such as in cases where large corporations owe millions in backpay (not looking at any ex-Masterchef judge in particular...) - that the chances of remedy are improved.
Much of the focus of Fair Work is on the business side of things. They do a great job in providing support and education services to businesses in need of advice to ensure that they are doing the right thing. They have also taken corporate giants like Coles, Woolworths and the Commonwealth Bank of Australia to court alleging significant legislative breaches including underpaying staff and breaching auditing requirements. Holding the big guys to account is a massive undertaking and one that we are all grateful that the Fair Work Ombudsman is there to lead.
However, as an individual, the protections can feel all too much like lip-service. The laws are there, but you have to be aware of your rights and opportunities to pursue remedy should you suffer injustice at the hand of your employer.
Thinking back to my time working in the mining industry, I remember casual mobile plant operators not being willing to ask the OCE (boss) to pull up operations because the conditions were too poor to be able to operate safely, as they'd be stood down. As such, it was often the casuals put in the position of doing the dangerous work while the permanent staff were reassigned.
Legally, the company couldn't fire the casual for refusing to work in unsafe conditions, but neither did they need to offer them another shift.
The same principle applies to discrimination. Not hiring someone, or not promoting someone because of their cultural identity, age, gender, sexuality, or disability is clearly a breach of the Fair Work Act.
However, how do you prove it? When you are passed over, despite having appropriate qualifications and strong interviews, where's the line that determines that discrimination is clearly the reason for a person's lack of career success on the balance of probabilities?
It is very difficult to establish without express evidence to prove discrimination. There's always another manufactured reason. Always a reason that "plays better".
I've also had clients over the years who have been bullied relentlessly at work and when they've retained legal counsel and taken their employer to court, the shear resources of the respondent made my client's journey untenable.
Dragging cases out for as long as possible, employing private investigators to harass them silently and just within the bounds of the law, and fighting dirty with every cent that they have, is not only not unheard of, but seems to be what to expect when an individual tries to exert their "workplace rights" through the legal avenues that are "available" to them.
This isn't even including the cost. Legal representation is expensive and not everyone has access to it. Without legal representation, the chances of success are drastically reduced.
I would love to see the businesses being made accountable for ensuring those workers know what their rights are and how to uphold them and I'd also love to see more accessible legal support for employees in need of help.
Because I ask you, what's the point of having workplace rights if we can't all demand their enforcement? What's the point of having legal avenues available if we can't all access them?
- Zoë Wundenberg is a careers consultant and un/employment advocate at impressability.com.au, and a regular columnist for ACM.