As first published on
Workplace Info
The adverse action provisions in the
Fair Work Act 2009 (Cth) ('the Act') have the potential
to provide very broad protections to employees and others. Taking
adverse action is not, on its own, unlawful; however, it is
unlawful to take adverse action because of a prescribed ground such
as union membership, sex, race and disability.
A key question in a claim for adverse action under the Act is
the causal link between the adverse action alleged and the
prescribed ground. How the link is proven in practice is usually
the central issue.
This article briefly outlines the adverse action framework with
a focus on the link between union membership and adverse action and
how the Federal Court in a recent case applied the High Court
decision in Board of Bendigo Regional Institute of Technical
and Further Education v Barclay [2012]
HCA 32 (7 September 2012).
