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PROTECTION AGAINST ADVERSE ACTIONS
UNDER THE FAIR WORK ACT: A BROAD APPLICATION

The General Protection provisions of the Fair Work Act 2009 (Cth) (“FWA”) protect workplace rights and freedom of association as well as providing protection from workplace discrimination.

General protections

Section 340(1) of the FWA precludes any person from taking "adverse action" against another person in relation to a workplace right. This includes action against a person who has elected to exercise of not exercise a workplace right, or action to prevent a person from exercising a workplace right.

The definition of “adverse action” under the FWA is deliberately broad. It encompasses action taken against employees, independent contractors (and their employees), prospective employees and employers.

What is an “adverse action”?

Pursuant to s 342 of the FWA, the following are considered “adverse actions” when taken by an employer against an employee:

(a)     Dismissing an employee;

(b)     Injuring an employee in their employment;

(c)     Altering the position of an employee to the employee's prejudice;

(d)     Discriminating between an employee and other employees of the employer; or

(e)     Threatening or organising to take such action as listed above.

A person will be in breach of the FWA even if the adverse action is not actually carried out. The provisions will apply even if the person threatens or makes arrangements to take any of the prohibited actions.

A reverse onus of proof

The adverse action/workplace rights protections contain a reverse onus of proof, meaning it will be up to the employers to prove they did not take the adverse action because of the alleged employee's workplace right.

The FWA brought substantial and significant changes in this area. The protections have been expanded and the right to seek an injunction is available even before an adverse action is taken.

As such the law in this area is sometimes unclear, and it is important for both employers and employees to have appropriate legal advice. If you are interested in more information on workplace rights or adverse action please contact us. The content of this article is not to be taken as legal advice.