Overview

The Federal Court of Australia has provided some comfort to concerned employers regarding the scope of the new adverse action provisions in the Fair Work Act 2009.

Under the Act, adverse action includes: dismissing an employee damaging an employee’s ability to do their job changing an employee’s job to their disadvantage treating one employee differently from other employees refusing to employ a potential employee not offering a potential employee all the terms and conditions normally in a job.

Adverse action becomes unlawful when the reason for the adverse action is a reason proscribed under the Act. This may include discriminatory reasons (such as age, sex, marital status, political opinion, etc), as a result of an employee exercising or proposing to exercise a workplace right, or because the employee engages in industrial activities. It is not necessary that the proscribed reason be the sole or dominant reason for the adverse action taken.

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