Fair Work Commission

See Fair Work Act s.342

Employer against an employee

Adverse action is taken by an employer against an employee if the employer threatens to, organises or takes action by:

• dismissing the employee
• injuring the employee in his or her employment
• altering the position of the employee to the employee’s prejudice, or
• discriminating between the employee and other employees of the employer.

Employee against an employer

Adverse action is taken by an employee against an employer if the employee threatens to or takes action by:

• ceasing work in the service of the employer, or
• taking industrial action against the employer.

Prospective employer against a prospective employee

Adverse action is taken by a prospective employer against a prospective employee if the prospective employer threatens to or takes action by:

• refusing to employ the prospective employee, or
• discriminating against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.

Principal against independent contractor

Adverse action is taken by the principal against an independent contractor if the principal threatens to or takes action by:

• terminating the contract
• injuring the independent contractor in relation to the terms and conditions of the contract
• altering the position of the independent contractor to the independent contractor’s prejudice
• refusing to make use of, or agree to make use of, services offered by the independent contractor, or
• refusing to supply, or agree to supply, goods or services to the independent contractor.

Principal against proposed independent contractor

Principal proposing to enter into a contract for services with an independent contractor against the independent contractor

Adverse action is taken by the principal against an independent contractor if the principal threatens to or takes action by:

• refusing to engage the independent contractor
• discriminating against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor
• refusing to make use of, or agree to make use of, services offered by the independent contractor, or
• refusing to supply, or agree to supply, goods or services to the independent contractor.

Independent contractor against a principal

Adverse action is taken by the independent contractor against a principal if the independent contractor threatens to or takes action by:

• ceasing work under the contract, or
• taking industrial action against the principal.

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

Adverse action is taken by the industrial association, or the officer or member of the industrial association against a person if the industrial association, or the officer or member of the industrial association threatens to or takes action by:

• organising or taking industrial action against the person
• taking action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment
• if the person is an independent contractor – taking action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services, or
• if the person is a member of the association – imposing 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).

Actions of industrial associations

For the purposes of the general protections, each of the following is taken to be action of an industrial association:

• action taken by the committee of management
• action taken by an officer or agent, acting in that capacity
• action taken by a member or group of members, if the action is authorised by the rules, the committee of management or an officer or agent of the industrial association (unless the committee of management or an officer has taken all reasonable steps to prevent the action)
• action taken by a member who performs the function of dealing with an employer on behalf of the member and other members, acting in that capacity (unless the committee of management or an officer has taken all reasonable steps to prevent the action), and
• if the industrial association is unincorporated and does not have a committee of management – action taken by a member, or group of members.^[1]

Unincorporated industrial associations

For the purposes of the general protections, a reference to a person includes a reference to an unincorporated industrial association.

A contravention of the general protections committed by an unincorporated industrial association is taken to have been committed by each member, officer or agent of the unincorporated industrial association who took, or took part in, the relevant action; and did so with the relevant state of mind.^[2]

Conduct of bodies corporate

Any conduct engaged in by, or at the direction of, an official (who can be an officer, employee or agent) of a body corporate, within the scope of the official’s actual or apparent authority, is considered to be conduct that the body has engaged in for the purposes of the Fair Work Act 2009.^[3]

Advising, encouraging, inciting or coercing action

If for a particular reason a person (the first person), advises, encourages or incites, or takes any action with intent to coerce a second person to take action, and the action if taken by the second person for the first person’s reason would contravene a general protections provision, then the first person is taken to have contravened the provision.^[4]

References