4 th australian workplace relations summit 2010 navigating the industrial landscape
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4 th Australian Workplace Relations Summit 2010 Navigating the Industrial Landscape. Day Two Wednesday 9 th June 2010 11.15 am to 11.50 am 8 th & 9 th June 2010 Harbours Edge Events Centre, Darling Harbour. Adverse Action. Presenter.

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4 th australian workplace relations summit 2010 navigating the industrial landscape
4th Australian Workplace RelationsSummit 2010 Navigating the Industrial Landscape

Day Two

Wednesday 9th June 2010

11.15 am to 11.50 am

8th & 9th June 2010

Harbours Edge Events Centre,

Darling Harbour

Adverse Action


Bradley J Beasley, LLM, LLB, Grad Cert Legal Practice

Legal Practitioner of the:

Supreme Courts ACT, NSW; and

High Court of Australia

  • 1. Understanding the impact ‘adverse actions’ can have on management decisions2. Defining adverse actions in terms of: (a) Employer protected rights (b) Industrial action3. Reducing liabilities for adverse actions
overview cont
Overview cont
  • s336 of the Fair Work Act 2009 (the FWA) address the objects in broad terms, they are to:
    • Protect workplace rights
    • Protect freedom of association
    • Provide protection from workplace discrimination
    • Provide effective relief for persons who have been:
      • Discriminated against,
      • Victimised; or
      • Adversely affected
overview cont1
Overview cont

S341 provides for the meaning of workplace rights and is quite broad. It applies where a person is:

  • Entitled to a benefit or has a recognised role
  • Able to initiate or participate in processes
  • Able to make a complaint
  • Able to seek an inquiry for compliance

These rights derive out of a workplace law, industrial instruments or a order made by an industrial body

overview cont2
Overview cont

The jurisdiction is quite wide net capturing not only those who are corporations but those dealing in trade and commence and those working in a Territory.

See S338 (1) (d), (e) and (f), (2), (3), (4) of the FWA

1 understanding the impact adverse actions can have on management decisions
1. Understanding the impact ‘adverse actions’ can have on management decisions
  • When communicating
  • When employing new staff
  • When dealing with:
    • Staff
    • Contractors
    • Industrial Associations
  • A Dispute
  • Remedies
  • Penalties
when communicating
When Communicating
  • Communication is essential as perceptions are central to this course of action as the FWA addresses:
    • Advising
    • Encouraging
    • Inciting
    • Action taken
    • Action threatened
    • Action not taken see s338 (c)
    • Organising Action see s342 (2) (b)
  • Communication can be direct or indirect in effect see s340 (1) and (2)
when employing new staff prospective employees
When employing new staffProspective Employees
  • Communication is equally important when employing new staff as they are taken to have workplace rights, see s341 (3) and see s342 (1) Item 2.
  • However more so if someone is perceived as coercing another or a third person to employ or not employ a particular person, see s355 (a).
when dealing with staff contractors industrial associations
When dealing with:StaffContractorsIndustrial Associations

S342 provides circumstances when adverse action is taken, in board terms they are:

when dealing with staff
When dealing with:Staff

Item 1

An employer taking action against an employee by:

  • Dismissing them; or
  • Injuring their employment; or
  • Altering their position to their prejudice; or
  • Discriminating between employees.
when dealing with staff cont
When dealing with:Staff cont

Caution must be taken when dealing with staff to avoid allegations of:

  • Coercion when it comes to workplace rights or how they may be exercised see s343
  • Undue influence or pressure with respect to agreement making, guaranteed annual earnings and deductions, see s344
  • Misrepresentations concerning workplace rights or how they will or may be exercised see s345
  • Entering into sham arrangements see s357
when dealing with prospective staff
When dealing with:Prospective Staff

Item 2

Where a prospective employer:

  • Refuses to employ a prospective employee; or
  • Discriminates against the prospective employee in the terms or conditions of employment.
when dealing with contractors
When dealing with:Contractors

Item 3

Where the principal enters into a contract for service with an independent contractor (the contractor) or a person employed or engaged by the contractor.

The principal affects the contractor by:

  • Terminating the contract; or
  • Injuring the terms and conditions of the contract; or
  • Alters their position to their prejudice; or
  • Refuses to make use of, or agree to make use of their services; or
  • Refuses to supply, or agree to supply, goods or services to them.
when dealing with contractors cont
When dealing with:Contractors cont

Note: also see

Item 4

Where the principle enters into arrangements through a second contractor to adversely affect the first contractor.

Item 6

Where the contractor takes adverse action against the principle.

when dealing with industrial associations
When dealing with:Industrial Associations

Item 7

Where an Industrial Association, or an officer or member of an Industrial Association, engages in the following against a person:

  • Organises or takes industrial action; or
  • Takes direct or indirect action that is prejudicial to the:
    • Employment or prospective employment; or
    • Contractor’s contract for services; or
  • By imposing a penalty, forfeiture or disability of any kind against a member other than any money legally owed to the association by the member.
a dispute
A Dispute

Division 8 Compliance

a dispute cont
A Dispute cont


  • Costs orders may be made against lawyers and paid agents where the other parties has incurred unreasonable costs due to the solicitors or agents conduct of the matter
  • An application for costs orders must be made within 14 days of the matter being finalised by FWA
  • Civil penalties apply for a breach of the costs order

Remedies may include:

  • Preventative injunction
  • Reinstatement
  • Uncapped compensation
  • Orders as the courts see fit

Part 3‑1--General protections

Item 11

2 defining adverse actions in terms of a employer protected rights
2. Defining adverse actions in terms of:(a) employer protected rights
  • Action
  • Conduct
  • Prospective Employees
  • Transfer of Business
  • Standing Down
  • Organisational Change
  • Discrimination
  • Termination of Employment

Action can include an omission see s12 of the FWA

S338 (1) (b) defines action against a constitutionally‑covered entity:

“...that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business...”


Conduct of the action is addressed by s338 (1) (c) to include the following:

Advising, encouraging or inciting, or ... with intent to coerce, a constitutionally‑covered entity:

(i) to take, or not take, particular action in relation to another person; or

(ii) to threaten to take, or not take, particular action in relation to another person...

prospective employees
Prospective Employees

An employer may make a conditional offer subject to ‘guarantee annual earnings’ to a prospective employee.

See s341 (4)

transfer of business
Transfer of Business

On a transfer of business the employer may refuse to employ a prospective employee if he or she would be entitled to a benefit.

See s341 (5) and Part 2-8 Transfer of Business

standing down
Standing Down

The employer may stand down staff if they are engaging in industrial action or in other circumstances where permitted.

See s342 (4)

organisational change
Organisational Change

As long as the employer consults and follows any change management provisions in an industrial instrument there is no impediment for an employer who is genuinely responding to economic, technological, structural or similar nature change.

See Part 3-6


The employer does not offend the Act if the employee cannot fulfil the inherent requirements of the ‘particular job’

Also on religious grounds if the employer is acting in good faith and to avoid injury related to those teachings.

See s351 (2)

termination of employment
Termination of Employment

An employer may terminate the employment of an employee on genuine grounds related to:

  • Poor performance
  • Misconduct
  • Serious Misconduct
  • Illness that is not temporary
2 defining adverse actions in terms of b industrial action
2. Defining adverse actions in terms of: (b) industrial action

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 (29 April 2010).

3 reducing liabilities for adverse actions
3. Reducing liabilities for adverse actions

Barclay v The Board of Bendigo Regional Institute of TAFE [2010] FCA 284


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