This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Employment Law Notes

Adverse Action Notes

Updated Adverse Action Notes

Employment Law Notes

Employment Law

Approximately 74 pages

Here you will find summarised employment law notes for the entire Monash University topic.
The summary notes are an excellent exam help, with steps to work through problems questions and summaries of cases. They are short enough for use in an exam, but detailed enough that you will never miss a point...

The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Topic 8: Adverse Action

  • Rule:

    • A person must not take adverse action against another person because the other person has a workplace right, or has or has not exercised a workplace right, or proposes or proposes not to exercise a workplace right, or to prevent the exercise of a workplace right by the other person s 340(1)

      • This is a civil remedy provision

    • A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs s 340(2)

      • This is a civil remedy provision

    • Accessorial liability: If a first person advises, encourages or incites or takes any action with intent to coerce a second person to take action, the first person is take to have contravened the provision s 362

  • Applicability of the provision:

    • This part applies to: s 338(1)

      • Action taken by a constitutionally covered entity

        • Includes: s 338(2)

          • a constitutional corporation

          • the Commonwealth

          • a Commonwealth authority

          • a body corporate incorporated in a Territory

          • an organisation

      • Action that affects, or is capable of affecting, the functions, relationships or business of a CC entity

      • Action that consists of advising, encouraging or inciting, or action with intent to coerce a CC to take action

      • Action taken in a Territory or a Commonwealth place

      • Action take by a trade and commerce employer; or a Territory employer

        • Trade and commerce employer is a national system employer s 338(3)

  • Has there been adverse action? s 342:

    1. Adverse action is taken by an employer against an employee if the employer

      • Dismisses the employee

      • Injures the employee in his or her employment

      • Alters the position of the employee to the employee’s prejudice; or

        • This is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the person before the conduct in question Qantas v ALAEA 2012

        • Must be ‘real and substantial’ rather than ‘merely possible or hypothetical’ Qantas v ALAEA 2012

        • If the person is in the cohort that is affected by a change, this is enough Qantas v ALAEA

      • Discriminates between the employee and other employees of the employer

      • Example of adverse action taken against employees:

        • Complaining about their treatment, or that of their fellow works Qantas v ALAEA 2012

        • Refusing to accept sub-award conditions Chileshe v E & M Business Trusts 2013

        • Taking or being entitled to take leave FWO v WKO 2012

        • Seeking to return to work after parental leave FWO v Tiger Telco 2012

        • Refusing to work unreasonable overtime Brown v Premier Pet 2013

        • Invoking the consultation and dispute resolution provisions in an enterprise agreement Stanley v Court 2014

        • Pursuing a workers compensation claim Stephens v Australian Postal 2011

        • Exercising responsibilities as a safety representative AMWU v Visy Packaging 2013

    2. Adverse action is taken by a prospective employer against a prospective employee if the employer

      • Refuses to employee them or discriminates against the employee in the terms or conditions on which the prospective employer offers to employ the prospective employee

        • This action can only be pursued if there was in fact a vacancy to which they might have been appointed Stephens v Australia 2013

    3. Adverse action is taken by a principal who has entered into a contract for services with an independent contractor against the independent contractor if the principal

      • Terminates the contract

      • Injures the independent contractor in relation to the terms and conditions of the contract; or

      • Alters the position of the independent contractor to the independent contractor’s prejudice; or

      • Refuses to make use of or agree to make use of services offered by the independent contract; or

      • Refuses to supply, or agree to supply, good or services to the independent contractor.

    4. Adverse action is taken by a 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 if the principal:

      • Refuses to engage the independent contractor; or

      • Discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or

      • Refuses to make use of, or agree to make use of, services offered by the independent contractor; or

      • Refuses to supply, or agree to supply, goods or services to the independent contractor

    5. Adverse action is taken by an employee against his or her employer if the employee

      • Ceases to work in the service of the employer; or

      • Takes industrial action against the employer

    6. Adverse action is taken by an employee/independent contractor against his or her employer if the employee

      • Ceases to work in the service of the employer; or

      • Takes industrial action against the employer

    7. Adverse action is taken by an industrial association, or an officer or member of an industrial association, against a person if the IA, or the officer of the IA

      • Organizes or takes industrial action against the person; or

      • Takes action that has the effect of prejudicing the person in the person’s employment or prospective employment; or

      • If the person is an independent contract – takes action that has the effect of prejudicing the independent contractor in relation to a contract for services; or

      • If the person is a member of the association – imposes a penalty, forfeiture or disability of any kind on the member

    • Adverse action does not include:

      • Action that is authorized under any law s 342(3)

      • Standing down an employee who is engaged in protected industrial action; and employed under a K that provides for the employer to stand them down s 342(4)

  • Is there a causal link between the employer’s adverse action and:

    • A workplace right of the employee OR

    • Industrial activities by the employee OR

    • Because the employee has...

Buy the full version of these notes or essay plans and more in our Employment Law Notes.