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

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

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

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.

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

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

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

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

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

Workplace Discrimination as a ground for adverse action RaceSex Sexual preference Age Physical or mental disability Marital status Family or carer’s responsibility Pregnancy Religion Political opinion Social Origin National Extraction

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

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

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

 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 s 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 How to protect Local Government against adverse action claims?

Follow up questions Jonathan Lord Employee Relations Advisor PH: (08) Mob: