The Federal Court has dismissed an employee’s adverse action claim, finding that a common law contract is not a “workplace right” under the general protection provisions in the Fair Work Act 2009 (FW Act).

A workplace right is defined to include an entitlement or responsibility under a “workplace instrument”, which means an instrument made or “recognised” by a workplace law. 

The employee claimed that his employer had taken adverse action against him by terminating his employment because he had a workplace right, being the right to exercise his responsibility under his employment contract to manage staff. 

The Federal Court held that while the FW Act “recognises” contracts of employment, it does not give effect to the rights under such contracts.  The Court noted that common law contracts underpin all employment relationships and held it was unlikely the concept of “recognition by a workplace law” was intended to refer to the contract itself.  The Court held that the meaning of recognition is narrow and refers to instruments which are given legal effect by statute.  Accordingly, employment contracts are not workplace instruments.

Barnett v Territory Insurance Office [2011] FCA 968