Adverse Action

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Adverse Actions and the Fair Work Act 2009

The Fair Work Act 2009 (“FWA”) has introduced the concept of an “adverse action” as an alternative remedy to unfair dismissal. Under the FWA employees and employers are entitled to bring an adverse action claim where a “workplace right” has been breached, or a breach is being threatened.

There are essentially two key elements required to bring an adverse action claim.

  • One party must be exercising, requesting, questioning or withholding a workplace right;
  • The other party must have acted, or threatened to act in response to this in a way which is adverse to the first party.


What is a “workplace right”?

The FWA defines a workplace right as including:

  • • an entitlement, benefit, or responsibility under a workplace law, workplace instrument or an order made by an industrial body (such as the Australian Industrial Relations Commission or Fair Work Australia);
  • • initiation or participation in, a process or proceedings under a workplace law or workplace instrument (including, but not limited to, a conference before Fair Work

Australia, court proceedings, protected industrial action, appointing a bargaining agent, making a request for flexible working arrangements or dispute settlement); or • making a complaint or inquiry to a body having capacity to seek compliance with a workplace law or workplace instrument. This is broad in its application and extends to the ability to make a complaint to the person’s employer, Fair Work Australia, or a union.


What is an adverse action?

There is potentially a very wide range of actions which could be considered adverse.

Examples of this include:

  • dismissing an employee;
  • •demoting or changing an employee’s position to their detriment;
  • impeding an employee’s ability to perform their job;
  • refusing to employ or promote a potential employee;
  • varying terms and conditions normally offered in a job to the employees detriment.
  • Employees include prospective, current and former employees.


Recent decisions

Automotive Food Metals Engineering Printing and Kindred Union v Philips Engineering

Australia Pty [2010] FCA 611 (15 June 2010)

This case involved an employee who was dismissed on the basis of redundancy. The Union (representing the employee) claimed that the employee was actually dismissed because of his involvement within the union, rather than because the position was redundant, and that this was an adverse action.

The Union sought an interim order to have the employee reinstated to his position until the substantive claim could be determined.

The court agreed to make the order on the basis that there was evidence to suggest that the employer was using redundancy as a “smokescreen” to disguise the real reasons for termination. The court found that the employee’s work history was satisfactory and the employer appeared to have enough work to justify his ongoing employment.

The court further determined that the allegations were serious and that a claim for damages would not be an adequate remedy.

Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590 (11 June 2010)

This case concerned the question of who was entitled to attend a disciplinary meeting. A union representative was to support the employee at the disciplinary meeting, and advised the employee that the meeting should only consist of the employee, his representative, and his supervisor or department manager. This advise was derived from a clause in the collective agreement, and was claimed by the union to be a workplace right. The employer wanted the human resources staff manager to attend the meeting. This was objected to by the employee and union representative.

The employer suggested to the employee that he obtain alternative representation, as this advice was not in the employee’s best interests. The union claimed that the employer threatened to dismiss or otherwise injure the employee if he did not attend the disciplinary meeting.

As a result of the human resources staff manager attending the disciplinary meeting, the employee and union representative walked out of the meeting and refused to attend further meetings. The employer terminated the employee’s agreement on the basis of serious misconduct.

The court found that the employer had done nothing to constitute an injury or threat to injure, paying particular attention to the employer’s suggestion that the employee seek alternative representation. In the absence of an injury or threat, the court found that no adverse action had occurred.


A caution to employers

Such cases show that employers must be aware that adverse action claims are taken seriously by the courts. Any changes in employment conditions which are to an employee’s detriment must be made fairly and transparently. Such changes must not be reactionary to an employee decision to exercise (or not exercise) their workplace rights.

If you have any queries or require any advice in relation to adverse action, or any other
employment law matter please contact Tony Pattinson at Ferguson Cannon Lawyers or visit our website for further information.

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Category: Employment Law, Fact Finders, General, Industrial Relations

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