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.
Wednesday 9th June 2010
11.15 am to 11.50 am
8th & 9th June 2010
Harbours Edge Events Centre,
Bradley J Beasley, LLM, LLB, Grad Cert Legal Practice
Legal Practitioner of the:
Supreme Courts ACT, NSW; and
High Court of Australia
S341 provides for the meaning of workplace rights and is quite broad. It applies where a person is:
These rights derive out of a workplace law, industrial instruments or a order made by an industrial body
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
S342 provides circumstances when adverse action is taken, in board terms they are:
An employer taking action against an employee by:
Caution must be taken when dealing with staff to avoid allegations of:
Where a prospective employer:
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:
Note: also see
Where the principle enters into arrangements through a second contractor to adversely affect the first contractor.
Where the contractor takes adverse action against the principle.
Where an Industrial Association, or an officer or member of an Industrial Association, engages in the following against a person:
Division 8 Compliance
Remedies may include:
Part 3‑1--General protections
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...
An employer may make a conditional offer subject to ‘guarantee annual earnings’ to a prospective employee.
See s341 (4)
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
The employer may stand down staff if they are engaging in industrial action or in other circumstances where permitted.
See s342 (4)
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)
An employer may terminate the employment of an employee on genuine grounds related to:
Jones v Queensland Tertiary Admissions Centre Ltd (No 2)  FCA 399 (29 April 2010).
Barclay v The Board of Bendigo Regional Institute of TAFE  FCA 284
Employ Competent Staff