The Fair Work Act 2009 (the Act) came into effect as on 1 July 2009 and introduced new and enhanced provisions relating to the protection of the employees and making them better equipped with the knowledge and understanding of the their workplace rights.

These provisions provide an alternative basis upon which an employee can commence a legal proceeding against an employer in cases where the employee is subjected to ‘adverse action’.

This article from Owen Hodge, the leading workplace lawyers in Sydney, will provide you a summary to guide through the workplace rights and adverse actions an employee is subjected to as per the Act.

Workplace Rights & Adverse Actions

The Act provides protections of certain rights, including workplace rights, right to engage in industrial activities, right to be free from unlawful discrimination and right to be free from undue influence or pressure in negotiating individual arrangements.

The above mentioned rights are protected from certain unlawful actions, including but not limited to:

  • Adverse action;
  • Coercion;
  • Misrepresentations; and/or
  • Undue influence or pressure in relation to:
  • Flexibility arrangements of an individual under modern awards and enterprise agreements;
  • Guarantees of annual earnings; and
  • Deductions from wages.

According to Section 341 of the Act, a person has a workplace right if such person:

  • Is entitled to the benefit of, or has a role or responsibility under a workplace law, workplace instrument or Order made by an industrial body; or
  • Is able to initiate, or participate in a process or proceedings under a workplace law or workplace instrument; or
  • Is able to make a complaint or inquiry:
  • To a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
  • If the person is an employee – in relation to his or her employment.

Adverse actions can include actions which are unlawful if it is taken for a discriminatory reason.

Under Section 342 of the Act, an adverse action taken by an employer includes but is not limited to:

  • Dismissing employees; or
  • Injuring employees in their employment; or
  • Altering employees’ position to their detriment; or
  • Discriminating between one employee and other employees; or
  • Refusing to employ a prospective employee; or
  • Discriminating against a prospective employee on the terms and conditions in the offer of employment; or
  • Terminating the contract of an independent contractor; or
  • Injuring a contractor in relation to the terms and conditions of the contract; or
  • Altering the contract to the contractor’s detriment; or
  • Refusing to use services provided by a contractor; or
  • Refusing to supply goods and services to a contractor; or
  • Discriminating against a contractor.

If you are an employee or an employer and would like to know more about workplace rights and adverse actions please feel free to contact our team of experienced workplace lawyers in Sydney.

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