Adverse Action Under the Fair Work Act

1. Adverse Action Under the Fair Work Act Jonathan Lord Employee Relations Advisor 16 November 2012

2. What are we doing today? • Define adverse action under the Fair Work Act • Define workplace rights in an adverse action context • Adverse action and union membership/industrial activity • Adverse action and workplace discrimination

3. What are we doing today? • Discuss what is meant by ‘multiple reasons for action’ • Discuss the reverse onus of proof in adverse action claims • Examine a recent adverse action High Court case • Provide tips to safeguard against adverse action claims

4. What is adverse action? Adverse action relates to the protection of workplace rights, protection from workplace discrimination, and protecting rights to engage in industrial activities or being a member of an industrial association.

5. What is adverse action? Adverse action is action that is unlawful if it is taken for prohibited reasons. It includes any of the following: • An employer dismissing an employee • injuring an employee in their employment • altering the employee’s position to their detriment • discriminating against an employee

6. Who can be affected by adverse action? • Employees • Prospective employees • Independent contractors (including prospective contractors) • Employers and industrial associations such as trade unions

7. Workplace rights and adverse action A person cannot take adverse action against a person because that person: • has a workplace right • has or has not used a workplace right • proposes to, or proposes not to, use a workplace right

8. What is a workplace right? • Entitlements, roles and responsibilities under workplace laws or workplace instruments • Processes and proceedings under workplace laws or workplace instrument • The ability to make complaints or enquiries

9. Union membership/engaging in an industrial activity • The right to be a member or not to be a member of an industrial association (e.g. trade union) • The right to or not to participate in other lawful industrial activity • The right not to participate in unlawful industrial activity

10. Workplace Discrimination as a ground for adverse action

11. 3 Key Points about adverse action • Damages awarded in the Federal Court can be uncapped • There can be multiple reasons for taking action against a person, only one of those reasons needs to be prohibited for adverse action to have occurred • In adverse action claims the burden of proof rests with the employer

12. Recent case law: Full Federal Court decision knocked unconscious! Good news for Local Government as High Court unanimously upholds Bendigo TAFE’s appeal against a controversial decision made by the Federal Court

13. How to protect Local Government against adverse action claims? • Implement or review a comprehensive policy that prohibits employee from discriminating and harassing others • Implement or review a comprehensive complaint handing procedure that informs employees of the right to raise a complaint and have it dealt with properly • Regularly train employees about awareness of discrimination and harassment and Local Government policies (refreshed at least every two years) • Train your managers/ supervisors in how to handle complaints and grievances • Follow your policies – it is no good having policies if they are not followed

14. How to protect Local Government against adverse action claims? • When writing position descriptions, procedures and policies use objective criteria • Promote environments that are free of discrimination and harassment • Regularly discuss discrimination and harassment at team/toolbox meetings • Be careful what you commit to writing – careless emails discussing a person personal attributes or union membership can end up in court! • Most importantly as HR practitioners, set an example to other Local Government employees

15. Follow up questions Jonathan Lord Employee Relations Advisor PH: (08) 9213 2015 Mob: 0407 426 597 Email: jlord@walga.asn.au