Fair Work Commission

Section 354

1. A person must not discriminate against an employer because:

   1. employees of the employer are covered, or not covered, by:

      1. provisions of the National Employment Standards; or
      2. a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or
      3. an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or

   2. it is proposed that employees of the employer be covered, or not be covered, by:

      1. a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or
      2. an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.
2. Subsection (1) does not apply to protected industrial action.

What is the protection?

A person (including an industrial association or a business) cannot discriminate against an employer because of the type of document which sets out the employees’ terms and conditions of employment.

Are there exceptions?

A person can discriminate against an employer if the discriminatory conduct is protected industrial action.