Adverse Action Provisions of the Fair Work Act 2009

ACT PUBLIC SECTOR

Adverse Action Provisions of the Fair Work Act 2009

•  HR Directors / Managers

•  Shared Services Centre

Purpose

To provide advice on the Adverse Action provisions of the Fair Work Act 2009 (FW Act).

What is Adverse Action?

The concept of ‘adverse action’ essentially relates to the prohibition in the FW Act to someone, or an industrial association, adversely affecting another person’s ability to exercise a workplace right.

Adverse action alone is not prohibited under the FW Act. Rather it is the causal link between adverse action and a workplace right.

Broadly, for an adverse action claim to be successful the applicant must be able to demonstrate that adverse action has occurred in a manner that has affected their ability to exercise a workplace right.

The FW Act more fully defines adverse action at section 342(1).

What is a Workplace Right?

The FW Act defines a workplace right at section 341(1) as follows:

A person has a workplace right if the person:

(a)  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

(b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)  is able to make a complaint or inquiry:

(d)  to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(e)  if the person is an employee—in relation to his or her employment.

Who Can Take Adverse Action?

The FW Act defines who can take adverse action at section 342 (1) as follows:

1.  an employer against an employee;

2.  a prospective employer against a prospective employee;

3.  a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor;

4.  a person (the principal) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor;

5.  an employee against his or her employer;

6.  an independent contractor against a person who has entered into a contract for services with the independent contractor; and

7.  an industrial association, or an officer or member of an industrial association, against a person.

Note: The list includes ‘prospective’ employees. As such, adverse action claims may be generated through a recruitment process.

Burden of Proof

Significantly, a reverse onus of proof applies to the alleged offender (typically the employer) who will need to be able to demonstrate that the adverse action did not breach the applicant’s workplace right(s). In other words, the defendant will need to displace the ‘presumption’ that the adverse action was taken for a proscribed reason.

Examples

Some examples of how adverse action ‘may’ play out in the workplace are as follows:

·  An employee is dismissed after making a complaint to their workplace union about not being paid overtime;

·  A male employee informs his supervisor that he would like to take unpaid parental leave for six months when his wife returns to work after a period of paid maternity leave. His supervisor responds that if the employee takes the unpaid parental leave he will not be promoted in the future;

·  A long term casual employee’s hours are reduced by their supervisor after taking long service leave;

·  A supervisor refuses a request by an employee to be provided with paid overtime opportunities when other employees in the work area are regularly provided with such opportunities.

Note: The adverse action provisions of the FW Act create a new avenue for a claimant to pursue a workplace matter involving dismissal, safety and/or discrimination.

Procedures and Timeframes

The procedure for an applicant to lodge a claim with Fair Work Australia is uncomplicated and may simply involve the electronic lodgement of a General Protections Dispute Form (F8) and a minimal lodgement fee.

If the claim relates to a dismissal the applicant has 60 days to apply to Fair Work Australia to deal with the dispute. This is longer than the 14 days provided under the unfair dismissal provisions of the FW Act.

For applications that do not relate to dismissal the standard statute of limitations applies and a claim can be brought up to six years after the event.

The power to enforce the adverse action provisions of the FW Act is also held by the Federal Court of Australia or the Federal Magistrates Court.

Be Aware

The adverse action provisions of the FW Act are significantly untested and very broad in their possible application.

You should be aware that the possible risks associated with the adverse action provisions include:

·  actions other than dismissal;

·  creates as yet untested avenues to pursue discrimination, safety and victimisation claims;

·  provides a wide range of remedies available to claimants including injunctions to prevent the adverse action;

·  enhanced timeframe regarding unfair dismissal claims;

·  compensation for loss suffered is uncapped;

·  fines of up to $33,000;

·  possibility of reinstatement if the claimant was dismissed; and

·  a court may make any order it sees fit to remedy a situation.

How to Minimise Risk

The breadth of possible exposure to adverse action claims means that risks cannot be totally eliminated. However, the following suggestions will help to minimize exposure to claims in the future. It is recommended that you:

·  be meticulous in your record keeping;

·  document and record all interviews, investigations or other meetings with staff particularly those that relate to feedback on recruitment and selection processes; probation, performance evaluations and assessments, counseling and discipline and any allegations of wrong doing;

·  include witnesses in meetings and interviews;

·  clearly document all reasons for decisions which affect employees or contractors;

·  offer employees the opportunity to have a support person present in meetings;

·  train your manager/supervisors in proper counseling, report writing and record keeping practices and recommend that when in doubt they should seek advice from HR managers;

·  assiduously follow any relevant processes in your Enterprise Agreement; and

·  take all complaints seriously.

It is further recommended that you take the time to read the adverse action provisions located under Part 3-1- General Protections of the FW Act.

Review

One of the most prominent decisions on adverse action to date is Barclay v the Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14. This decision will be the subject of appeal before the High Court in the first quarter of 2012. This Advice will be reviewed following an analysis of the Court’s decision as it may impact on the ACTPS.

Approval Authority

Andrew Kefford

Commissioner for Public Administration

23 February 2012

Document Name: Adverse Action

Prepared by: Senior Manager, Workplace Relations, Office of Industrial Relations

Version: Number 1

Feedback to:

Issue Date: February 2012

Review Date: June 2012