The General Protection provisions of the Fair Work Act 2009 which govern adverse action are designed to protect workplace rights and freedom of association and to provide protection from workplace discrimination.
An employer must not take ‘adverse action‘ against a worker because that worker:
1. has a workplace right;
2. has, or has not, exercised a workplace right; or
3. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.
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A person has a workplace right if the person:
- 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
- is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument
- is able to make a complaint or enquiry:
- 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 job.
Further, businesses must not take any adverse action against workers because of their race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. This is subject to a number of exceptions, including where the action is not unlawful under a relevant anti-discrimination law, taken because of the inherent requirements of the particular position concerned, or if the action is taken against a staff member by a religious institution, where the action is taken in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Further, a business must not dismiss a worker because the they are temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Meaning of Adverse Action
A workplace takes adverse action against a worker if the business:
- dismisses the worker
- injures them in the course of work
- alters the worker’s position to their detriment, or
- discriminates between them and other staff members.
MKI Legal can assist in all aspects of adverse action claims at the Fair Work Commission or the Federal Circuit Court (formerly known as the Federal Magistrates Court).