Your Rights under the Fair Work Act 2009(Cth) and the Equal Opportunity Act 2010(Vic)
It is unlawful for your employer to dismiss you because you have raised concerns that you are not receiving all, or part of your employment entitlements such as superannuation. You have a statutory right to request information regarding your employment entitlements and make a formal or informal complaint regarding your workplace rights.
Your employer may be inadvertently or deliberately failing to provide you with your employment entitlements, meaning it is pivotal that you make yourself aware of the benefits you are entitled to. These entitlements may be embodied in a statute, award, enterprise agreement or employment contract.
The right to be paid superannuation is a fundamental employment entitlement for employees and an obligation that all employers should be well informed of. That being so, you should not be in fear of losing your employment for raising concerns that you are not being paid superannuation. If your employer does dismiss you because you have confronted it about unpaid entitlements it may have acted in contravention of the Fair Work Act 2009 (Cth) or the Equal Opportunity Act 2010 (Vic) depending upon the nature and source of the workplace right or employment entitlement.
Fair Work Act 2009 (Cth)
Section 340(1) of the Act states that an employer must not take adverse action against an employee:
(a) because the employee has a workplace right; or has, or has not, exercised a workplace right; or proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the employee. Put simply, this provision prohibits your employer from dismissing you because you have sought to enforce a workplace right such as payment of your superannuation.
Section 342(1) of the Act defines adverse action to include dismissal, discrimination, injury of employment or alteration of employment to the employee’s prejudice. Section 342(2) of the Act states that adverse action includes threatening to take action covered by section 342(1) and therefore your employer will be acting in breach of the Act if it threatens to dismiss you if you continue to make complaints about workplace rights.
Your workplace rights can be derived from a number of different sources. Section 341(1) of the Act states that a person has a ‘workplace right’ if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee–in relation to his or her employment.
As a result of these provisions it is unlawful for your employer to dismiss you (‘adverse action’) because you have proposed to claim superannuation entitlements (‘a workplace right’).
As can be seen, section 341(1)(c) of the Act defines a workplace right to include the right to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or if the person is an employee; in relation to his or her employment. This means that you may be protected from dismissal if you have made a complaint to an external workplace authority or a complaint pursuant to a workplace instrument.
If you who have been dismissed for exercising their right to superannuation entitlements may therefore lodge a general protections dispute with Fair Work Australia under the Act.