Since the introduction of the Fair Work Act, there has been a
lot of speculation about the scope of actions concerning
"adverse action" against an employee because the employee
has exercised "workplace rights".
Two recent cases illustrate the application of the prohibition on
In the first case, Bendigo TAFE suspended an employee for a period
during which an accreditation audit was being conducted, because of
an email Mr Barclay had sent in the lead up to the audit. Mr
Barclay was President of the local sub-branch of the union. His
email alleged that members had complained of being asked to produce
false or fraudulent documents for the audit (surely that would
He declined to provide any information to Bendigo TAFE to support
Mr Barclay made an application alleging that the suspension was
adverse action related to him exercising his rights as a union
official. Bendigo TAFE argued that the issue was not his union
role, but the intemperate email alleging dishonest conduct by
others, unsupported by any evidence. Mr Barclay lost before the
judge who first heard his claim in the Federal Court, but won in
the Full Court on appeal.
The majority of the Full Court held that it was impossible to
separate Mr Barclay's conduct from his role as a union
official, however wrong-headed or intemperate his conduct may have
been: this should have been dealt with as an employer/union issue
rather than an employer/employee issue.
The moral of this case is that employers need to take extreme
care when taking disciplinary action against an employee who is
also involved in union activity, and to be very careful that the
conduct in question relates to conduct clearly in his role as an
individual employee and not in any way connected with union
In the second case, Mr Murray was a ground crew employee for
Qantas, seconded for a period to work at Narita Airport in Japan.
There was some confusion about which pay rates applied to employees
seconded in this way, and when Mr Murray raised concerns about
this, his manager became angry. Shortly afterwards all postings for
Brisbane ground crew to overseas airports were suspended while
Qantas tried to resolve the issue, and email comments by the
manager referred to overseas postings being more likely to be
available to those who didn't complain about the
The suspension of overseas postings meant that Mr Murray was
deprived of the opportunity for another overseas posting, although
it was unlikely that he would in fact have received another
overseas posting in the short term as they were allocated on a
However, the Court concluded that, nevertheless, this did amount to
adverse action against Mr Murray, because he had exercised his
right to raise issues regarding the pay structure (which were in
fact found to be well founded).
It is critical when contemplating action which may appear to be
detrimental to an employee to consider whether there are any risks
in the background arising from, for example, complaints about pay
or safety issues, or any issue which might amount to discriminatory
conduct, as these could form the basis for an adverse action claim
even if an unfair dismissal claim is not possible.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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