Commonwealth Consolidated Acts

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FAIR WORK ACT 2009 - SECT 342

Meaning of adverse action

             (1)  The following table sets out circumstances in which a person takes adverse action against another person.

 

Meaning of adverse action

Item

Column 1

Adverse action is taken by ...

Column 2

if ...

1

an employer against an employee

the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c)  alters the position of the employee to the employee's prejudice; or

(d) discriminates between the employee and other employees of the employer.

2

a prospective employer against a prospective employee

the prospective employer:

(a) refuses to employ the prospective employee; or

(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the 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

the principal:

(a) terminates the contract; or

(b) injures the independent contractor in relation to the terms and conditions of the contract; or

(c)  alters the position of the independent contractor to the independent contractor's prejudice; or

(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or

(e)  refuses to supply, or agree to supply, goods or services to 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

the principal:

(a) refuses to engage the independent contractor; or

(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or

(c)  refuses to make use of, or agree to make use of, services offered by the independent contractor; or

(d) refuses to supply, or agree to supply, goods or services to the independent contractor.

5

an employee against his or her employer

the employee:

(a) ceases work in the service of the employer; or

(b) takes industrial action against the employer.

6

an independent contractor against a person who has entered into a contract for services with the independent contractor

the independent contractor:

(a) ceases work under the contract; or

(b) takes industrial action against the person.

7

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

the industrial association, or the officer or member of the industrial association:

(a) organises or takes industrial action against the person; or

(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or

(c)  if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or

(d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

             (2)  Adverse action includes:

                     (a)  threatening to take action covered by the table in subsection (1); and

                     (b)  organising such action.

             (3)  Adverse action does not include action that is authorised by or under:

                     (a)  this Act or any other law of the Commonwealth; or

                     (b)  a law of a State or Territory prescribed by the regulations.

             (4)  Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:

                     (a)  engaged in protected industrial action; and

                     (b)  employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.



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