Adverse Action under Employment Law

What is an Adverse Action Under Employment Law?

In the context of employment law, an adverse action is an action taken by a person, including doing, threatening, or organising an action, that adversely affects a person or organisation.

The types of actions that could amount to an unlawful act include doing, threatening, or organising any of the following:

  • An industrial action that would impose a penalty on a member;
  • An employer dismissing, injuring, altering a position to detriment an employee or discriminating between them and other employees;
  • An employer refusing employment or discriminating against them in the terms and conditions the employer offers;
  • A principal terminating, injuring, altering a position to detriment an independent contractor;
  • A principal refusing to use an independent contractor’s services or to supply goods and services to them or discriminating against them in the terms and conditions the principal offers to engage them under;
  • An employee or independent contractor taking industrial action against their employer or principal;
  • An industrial association, or an officer or member of an industrial association, organising or taking industrial action against a person, or taking action that is detrimental to an employee or independent contractor.

When is an adverse action prohibited?

A person is prohibited from taking an adverse action against another person as detailed in the Fair Work Act if that person:

  • has a right within the workplace;
  • has or has not used a right with in that workplace;
  • plans to or plans not to use a right within the workplace;
  • belongs to or doesn’t belong to a Union;
  • engages in or doesn’t engage in industrial activities.

What doesn’t constitute an adverse action

An action that is authorised under the Fair Work Act or any other Commonwealth law, an employer who stands down an employee engaged in protected industrial action or an employer who stands down an employee in accordance with an employment contract do not constitute adverse actions.

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