The Federal Circuit Court has determined that the Privacy Act 1988 (Cth) is not a “workplace law” for the purpose of protecting a person against adverse action under s 340 of the Fair Work Act 2009 (Cth) (“Act”).

The employer in question had engaged a graduate intermittently as an independent contractor and later asked her to apply for a full-time role as an employee. As part of the pre-employment screening process, the job applicant was required to provide an electronic copy of her signature and a digital copy of her passport to an agent conducting the pre-employment drug test. The job applicant declined, citing concerns about identity theft and privacy.

The prospective employer withdrew the offer of employment and at the expiry of the latest engagement terminated the independent contractor arrangement. Although the prospective employer eventually hired the job applicant a few months later (having decided that she had provided sufficient information to pass the pre-employment check), it dismissed her because she did not accept the authority of her manager.

The job applicant was unsuccessful in her claim for more than $2 million for loss of future earnings alleging that the withdrawal of the original offer, termination of the independent contractor arrangement and dismissal amounted to adverse action for exercising a workplace right arising under a workplace law, namely the Privacy Act 1988 (Cth) (“Privacy Act”).

The Court held that the Privacy Act is also not a “workplace law” for the purpose of the general protections provisions in the Act, as the primary concern of the Privacy Act is not aimed at regulating the relationship between employers and employees. However, the judge conceded that a provision within an Act or regulation could regulate the relationship between employers and employees even though the Act or the regulations as a whole did not do so.

In any case, the Judge found that the employer had discharged the onus of proving that it had terminated her employment because of her attitude to her manager and not because she had commenced an adverse action claim.

Austin v Honeywell Ltd (2013) FCCA 662

In a nutshell: Not all statutory rights amount to workplace rights granting protection against adverse action. Whether a workplace right exists depends on whether the provision or Act is aimed at regulating the relationship between employers and employees. The Privacy Act was held not to be a workplace law, therefore it did not give rise to a workplace right.

Katrina Li and Chris Tan