Kiefel CJ
Gageler J
Gleeson J
Jagot J
8.
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.
…"
Relevantly, "workplace law" is defined to include the Act[1].
Division 3 of Pt 3-1, entitled "Workplace rights", contains prohibitions against adverse action[2], coercion[3], undue influence or pressure (although without reference to workplace rights)[4], and misrepresentations[5]. The protections afforded in Pt 3-1 are provided to a person, whether an employee, an employer or otherwise[6], in contrast with Pt 3-2 of the Act, which concerns unfair dismissal and explicitly establishes a framework that "balances" the needs of business and the needs of employees[7]. The protections in Pt 3-1 are secured through civil regulatory remedies enforceable by the Fair Work Ombudsman and affected parties.
