The Fair Work Act 2009 (Cth) (FW Act) protects employees from adverse action taken by their employer because the employee has exercised a workplace right.

A workplace right exists where the employee:

• is entitled to a benefit (or has a role or responsibility) under a workplace law, workplace instrument or an order made by an industrial body;
• is able to initiate, or participate in, a process or proceeding under a workplace law or workplace instrument; or
• is able to make a complaint or inquiry to a person or body under a workplace law or in relation to their employment.

In Homes v Australian Carers Pty Ltd (2023), the Court determined whether the employee had a workplace right to have their employer do the following:

1. Comply with the anti-discrimination and anti-bullying provisions of the FW Act. The Court determined this was not a workplace right because the expectation was based on a provision of the FW Act, which is enlivened only when an application is made.
2. Comply with the employment contract. The Court determined this was not a workplace right because employment contract rights are not workplace rights.
3. Afford the employee natural justice or procedural fairness. The Court determined this was not a workplace right because this is not a right created in relevant legislation or applicable modern awards.
4. Allow the employee to work from home. The Court determined this was not a workplace right because this is not a right created in relevant legislation or applicable modern awards.
5. Allow the employee to make an inquiry or complaint to their employer about their employer providing them with a safe place of work, and for their employer to do so. The Court determined this was a workplace right, as these were entitlements that properly stemmed from workplace laws or instruments.