How are Australian Workers Protected from Adverse Actions in the Workplace?

by The FindLaw Team

Workers in Australia are afforded many rights that prevent employers, or their fellow employees from taking adverse action against anyone who chooses to exercise their statutory rights in the workplace. We’ve already covered unfair dismissal laws at great length, however it’s also important to note that adverse actions don’t necessarily involve being unfairly dismissed from a workplace – although that is one aspect of the adverse action laws – but can also include, injuries caused to an employee, or discriminatory actions directed towards one employee to another, irrespective of the positions held by the parties involved.

The Fair Work Act (FWA) has many protections in place to guard workers from unscrupulous conduct in the workplace and by understanding the protections afforded to all workers under the FWA, will hopefully result in a more productive work environment.

Behaviours that are considered as adverse actions

Most articles that focus on adverse actions is mainly centred around issues such as freedom of association and unlawful termination, but legislative protections under the FWA covers all forms of discriminatory actions that can arise in a work environment. Section 342 of the FWA sets out what constitutes an adverse action, and can involve a number of workplace associations which aren’t strictly limited to the relationship between an employer and an employee for instance.

So what are the relationships that are covered in the FWA that can involve adverse actions? Adverse actions can be taken by:

  • a prospective employer against a prospective employee
  • a principal contractor to another contractor, or an employee of the contractor
  • a contractor against a principal contractor
  • an industrial association member, or officer, against another person.

It’s fascinating to note that adverse actions aren’t limited to unfair dismissal laws but is in fact multifaceted, and can include almost all workplace relationships. 

However, we’re probably most familiar with adverse actions involving an employer and an employee. 

Adverse actions against an employee

An adverse action committed by an employer against an employee usually involves one or more of the following acts:

  • unfairly terminating an employee’s contract
  • injuring an employee in the course of employment
  • altering the position of the employee to an employee’s prejudice
  • discriminating against a particular employee.

Most of the adverse actions outlined are pretty self explanatory, but the subsection, ‘altering the position of the employee to an employee’s prejudice’ isn’t as easy to decipher. What exactly does the subsection mean? In order to unpack the rather convoluted wording, the High Court has interpreted the subsection to mean, not only legal injuries which are committed against an employee by an employer, but also a deterioration in the relationship between the parties due to the legal actions undertaken by the worker, which has then resulted in a negative change in the nature of their relationship – such as designating another employee to undertake the duties that was formerly the responsibility of an employee that chose to exercise their statutory rights. 

Protection of workplace rights

In order to gain a further understanding of what constitutes adverse action in the workplace, it’s useful to also outline the protections afforded under the FWA for behaviours that are legally acceptable, and which cannot be infringed upon by an employer, if an employee:

  • has exercised a workplace right
  • has chosen not to exercise a workplace right
  • proposes to exercise, or alternatively, not exercise a workplace right.

A primary example of an employer encroaching on an employee’s rights, can take the form of discriminating against a person who decides to take up parental leave – which is a legal benefit afforded to all Australian workers. 

The fundamental premise of the adverse action laws is to prevent workers from being persecuted for exercising their legal rights in the workplace. No employee, or employer for that matter, should be a victim of adverse actions. 

For anyone who has a workplace issue, always seek the appropriate legal assistance. 


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