Who can make an adverse action claim?

Authored by Nick Le Mare, Partner, and Lauren Mooney, Law Graduate, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team.

An introduction to adverse action claims

The core “general protections” in Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act) prohibit the taking of adverse action by various persons (eg employers, principal contractors) against other persons (eg employees, independent contractors), where that action is taken because of the other person’s:

• workplace rights and exercise of those rights; and
• participation in industrial activities.

See also Heading: Who do the general protections apply to? in Guidance Note: An introduction to the general protections.

Separately, see also relevant rights and obligations under equal opportunity laws. See Overview — Discrimination and harassment.

Part 3-1 of the FW Act also protects persons against adverse action taken by an employer on the basis of a protected attribute/s ie race, colour, sex, sexual orientation, age, physical or mental disability etc. See Guidance Note: Are there other general protections?

Part 3-1 of the FW Act also contains several provisions protecting prospective and current employees or contractors from various forms of “sham contracting”. This is where employment is misrepresented as an independent contracting arrangement. See Guidance Note: What are the general protections against sham contracting?

What is an adverse action?

The meaning of adverse action is explained by way of a table at s 342(1) of the FW Act (see below).