General Protections and Adverse Action

Douglas Cheveralls have experience in providing advice and representation in general protection and adverse action claims.

What are general protections?

The Fair Work Act includes protections for employees with regard to a number of key workplace rights. Those rights include a right to be free from unlawful discrimination, and a right to engage in industrial activities and be free from undue pressure or influence when negotiating work conditions and arrangements.

What is adverse action?

The Fair Work Act protects an employee by preventing an employer from taking adverse action in response to the employee exercising a workplace right. A simple example might be that if an employee is terminated because they engaged in industrial activity, or tried to exercise a workplace right in their contract or award, such as flexi-time or working from home.

Other examples might be where an employee refuses to employ a candidate based on unlawful discrimination (such as race or gender) or discriminates between employees.

It is also notable that independent contractors may be protected from adverse action in some circumstances, such as coercion and abuses of freedom of association.

What is not adverse action?

Not every discriminatory or harmful act is adverse action. An employer may take an action which is harmful or discriminatory for genuine reasons. For example, an employer might offer a lower salary to someone with less experience or less relevant skills. An employer might choose not to hire a person because they don’t have a driver’s licence, and having a driver’s licence is a useful or necessary part of the position advertised. An employee might be made redundant for genuine reasons, such as a restructure of the business where the role is no longer needed, or a downturn in the economy or demand for the business requiring a reduction of staff numbers.

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