Advice Statement
Advice No. 1/2012
Issued: February 2012
ACT PUBLIC SECTOR
Adverse Action Provisions of the Fair Work Act 2009
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HR Directors / Managers
Shared Services Centre
Purpose
To provide advice on the Adverse Action provisions of the Fair Work Act 2009 (FW Act).
What is Adverse Action?
The concept of ‘adverse action’ essentially relates to the prohibition in the FW Act to
someone, or an industrial association, adversely affecting another person’s ability to
exercise a workplace right.
Adverse action alone is not prohibited under the FW Act. Rather it is the causal link between
adverse action and a workplace right.
Broadly, for an adverse action claim to be successful the applicant must be able to
demonstrate that adverse action has occurred in a manner that has affected their ability to
exercise a workplace right.
The FW Act more fully defines adverse action at section 342(1).
What is a Workplace Right?
The FW Act defines a workplace right at section 341(1) as follows:
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:
Chief Minister and Treasury | Canberra Nara Centre
GPO Box 158 Canberra ACT 2601 | phone: 132281 | www.act.gov.au
(d) to a person or body having the capacity under a workplace law to seek compliance
with that law or a workplace instrument; or
(e) if the person is an employee—in relation to his or her employment.
Who Can Take Adverse Action?
The FW Act defines who can take adverse action at section 342 (1) as follows:
1. an employer against an employee;
2. a prospective employer against a prospective employee;
3. a person (the principal) who has entered into a contract for services with an
independent contractor against the independent contractor, or a person employed
or engaged by the independent contractor;
4. a person (the principal) proposing to enter into a contract for services with an
independent contractor against the independent contractor, or a person employed
or engaged by the independent contractor;
5. an employee against his or her employer;
6. an independent contractor against a person who has entered into a contract for
services with the independent contractor; and
7. an industrial association, or an officer or member of an industrial association, against
a person.
Note: The list includes ‘prospective’ employees. As such, adverse action claims may be
generated through a recruitment process.
Burden of Proof
Significantly, a reverse onus of proof applies to the alleged offender (typically the employer)
who will need to be able to demonstrate that the adverse action did not breach the
applicant’s workplace right(s). In other words, the defendant will need to displace the
‘presumption’ that the adverse action was taken for a proscribed reason.
Examples
Some examples of how adverse action ‘may’ play out in the workplace are as follows:
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An employee is dismissed after making a complaint to their workplace union about
not being paid overtime;
A male employee informs his supervisor that he would like to take unpaid parental
leave for six months when his wife returns to work after a period of paid maternity
leave. His supervisor responds that if the employee takes the unpaid parental leave
he will not be promoted in the future;
A long term casual employee’s hours are reduced by their supervisor after taking
long service leave;
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A supervisor refuses a request by an employee to be provided with paid overtime
opportunities when other employees in the work area are regularly provided with
such opportunities.
Note: The adverse action provisions of the FW Act create a new avenue for a claimant to
pursue a workplace matter involving dismissal, safety and/or discrimination.
Procedures and Timeframes
The procedure for an applicant to lodge a claim with Fair Work Australia is uncomplicated
and may simply involve the electronic lodgement of a General Protections Dispute Form (F8)
and a minimal lodgement fee.
If the claim relates to a dismissal the applicant has 60 days to apply to Fair Work Australia to
deal with the dispute. This is longer than the 14 days provided under the unfair dismissal
provisions of the FW Act.
For applications that do not relate to dismissal the standard statute of limitations applies
and a claim can be brought up to six years after the event.
The power to enforce the adverse action provisions of the FW Act is also held by the Federal
Court of Australia or the Federal Magistrates Court.
Be Aware
The adverse action provisions of the FW Act are significantly untested and very broad in
their possible application.
You should be aware that the possible risks associated with the adverse action provisions
include:
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actions other than dismissal;
creates as yet untested avenues to pursue discrimination, safety and victimisation
claims;
provides a wide range of remedies available to claimants including injunctions to
prevent the adverse action;
enhanced timeframe regarding unfair dismissal claims;
compensation for loss suffered is uncapped;
fines of up to $33,000;
possibility of reinstatement if the claimant was dismissed; and
a court may make any order it sees fit to remedy a situation.
How to Minimise Risk
The breadth of possible exposure to adverse action claims means that risks cannot be totally
eliminated. However, the following suggestions will help to minimize exposure to claims in
the future. It is recommended that you:
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be meticulous in your record keeping;
document and record all interviews, investigations or other meetings with staff
particularly those that relate to feedback on recruitment and selection processes;
probation, performance evaluations and assessments, counseling and discipline and
any allegations of wrong doing;
include witnesses in meetings and interviews;
clearly document all reasons for decisions which affect employees or contractors;
offer employees the opportunity to have a support person present in meetings;
train your manager/supervisors in proper counseling, report writing and record
keeping practices and recommend that when in doubt they should seek advice from
HR managers;
assiduously follow any relevant processes in your Enterprise Agreement; and
take all complaints seriously.
It is further recommended that you take the time to read the adverse action provisions
located under Part 3-1- General Protections of the FW Act.
Review
One of the most prominent decisions on adverse action to date is Barclay v the Board of
Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14. This
decision will be the subject of appeal before the High Court in the first quarter of 2012. This
Advice will be reviewed following an analysis of the Court’s decision as it may impact on the
ACTPS.
Approval Authority
Andrew Kefford
Commissioner for Public Administration
23 February 2012
Document Name: Adverse Action
Prepared by: Senior Manager, Workplace Relations, Office of Industrial Relations
Version: Number 1
Feedback to: oir@act.gov.au
Issue Date: February 2012
Review Date: June 2012