Employment disputes generally take two forms, disputes that can be heard by the Fair Work Commission under the provisions of the Fair Work Act and disputes outside the operation of the Act which may give rise to actions for breach or repudiation of contract. However most employment matters will fall into the purview Fair Work Act Either as a Unfair Dismissal or a contravention of a workers General Protections as afforded by the Act.

Unfair dismissal

Division 1Introduction

379  Guide to this Part

This Part is about the unfair dismissal of national system employees, and the granting of remedies for unfair dismissal.

Division 2 sets out when a person is protected from unfair dismissal.

Division 3 sets out the elements that make up an unfair dismissal.

Division 4 sets out the remedies the FWC can grant for unfair dismissal.

Division 5 is about the procedural aspects of getting remedies for unfair dismissal.

380  Meanings of employee and employer

                   In this Part, employee means a national system employee, and employer means a national system employer.

Note:          See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

381  Object of this Part

             (1)  The object of this Part is:

                     (a)  to establish a framework for dealing with unfair dismissal that balances:

                              (i)  the needs of business (including small business); and

                             (ii)  the needs of employees; and

                     (b)  to establish procedures for dealing with unfair dismissal that:

                              (i)  are quick, flexible and informal; and

                             (ii)  address the needs of employers and employees; and

                     (c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

             (2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note:          The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

Division 2Protection from unfair dismissal

382  When a person is protected from unfair dismissal

                   A person is protected from unfair dismissal at a time if, at that time:

                     (a)  the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

                     (b)  one or more of the following apply:

                              (i)  a modern award covers the person;

                             (ii)  an enterprise agreement applies to the person in relation to the employment;

                            (iii)  the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

383  Meaning of minimum employment period

                   The minimum employment period is:

                     (a)  if the employer is not a small business employer—6 months ending at the earlier of the following times:

                              (i)  the time when the person is given notice of the dismissal;

                             (ii)  immediately before the dismissal; or

                     (b)  if the employer is a small business employer—one year ending at that time.

384  Period of employment

             (1)  An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

             (2)  However:

                     (a)  a period of service as a casual employee does not count towards the employee’s period of employment unless:

                              (i)  the employment as a casual employee was on a regular and systematic basis; and

                             (ii)  during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

                     (b)  if:

                              (i)  the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

                             (ii)  the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

                            (iii)  the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

                            the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

Division 3What is an unfair dismissal

385  What is an unfair dismissal

                   A person has been unfairly dismissed if the FWC is satisfied that:

                     (a)  the person has been dismissed; and

                     (b)  the dismissal was harsh, unjust or unreasonable; and

                     (c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

                     (d)  the dismissal was not a case of genuine redundancy.

Note:          For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386  Meaning of dismissed

             (1)  A person has been dismissed if:

                     (a)  the person’s employment with his or her employer has been terminated on the employer’s initiative; or

                     (b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

             (2)  However, a person has not been dismissed if:

                     (a)  the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

                     (b)  the person was an employee:

                              (i)  to whom a training arrangement applied; and

                             (ii)  whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

                            and the employment has terminated at the end of the training arrangement; or

                     (c)  the person was demoted in employment but:

                              (i)  the demotion does not involve a significant reduction in his or her remuneration or duties; and

                             (ii)  he or she remains employed with the employer that effected the demotion.

             (3)  Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

387  Criteria for considering harshness etc.

                   In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

                     (a)  whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

                     (b)  whether the person was notified of that reason; and

                     (c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

                     (d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

                     (e)  if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

                      (f)  the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                     (g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

                     (h)  any other matters that the FWC considers relevant.

388  The Small Business Fair Dismissal Code

             (1)  The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

             (2)  A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

                     (a)  immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

                     (b)  the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

389  Meaning of genuine redundancy

             (1)  A person’s dismissal was a case of genuine redundancy if:

                     (a)  the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

                     (b)  the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

             (2)  A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

                     (a)  the employer’s enterprise; or

                     (b)  the enterprise of an associated entity of the employer.

Division 4Remedies for unfair dismissal

390  When the FWC may order remedy for unfair dismissal

             (1)  Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

                     (a)  the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

                     (b)  the person has been unfairly dismissed (see Division 3).

             (2)  The FWC may make the order only if the person has made an application under section 394.

             (3)  The FWC must not order the payment of compensation to the person unless:

                     (a)  the FWC is satisfied that reinstatement of the person is inappropriate; and

                     (b)  the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note:          Division 5 deals with procedural matters such as applications for remedies.

391  Remedy—reinstatement etc.

Reinstatement

             (1)  An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

                     (a)  reappointing the person to the position in which the person was employed immediately before the dismissal; or

                     (b)  appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

          (1A)  If:

                     (a)  the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

                     (b)  that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

                     (c)  appoint the person to the position in which the person was employed immediately before the dismissal; or

                     (d)  appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

             (2)  If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

                     (a)  the continuity of the person’s employment;

                     (b)  the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

             (3)  If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

             (4)  In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

                     (a)  the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

                     (b)  the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392  Remedy—compensation

Compensation

             (1)  An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

             (2)  In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

                     (a)  the effect of the order on the viability of the employer’s enterprise; and

                     (b)  the length of the person’s service with the employer; and

                     (c)  the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

                     (d)  the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

                     (e)  the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

                      (f)  the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

                     (g)  any other matter that the FWC considers relevant.

Misconduct reduces amount

             (3)  If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

             (4)  The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

             (5)  The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

                     (a)  the amount worked out under subsection (6); and

                     (b)  half the amount of the high income threshold immediately before the dismissal.

             (6)  The amount is the total of the following amounts:

                     (a)  the total amount of remuneration:

                              (i)  received by the person; or

                             (ii)  to which the person was entitled;

                            (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

                     (b)  if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393  Monetary orders may be in instalments

                   To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

Division 5Procedural matters

394  Application for unfair dismissal remedy

             (1)  A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1:       Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2:       For application fees, see section 395.

Note 3:       Part 6‑1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

             (2)  The application must be made:

                     (a)  within 21 days after the dismissal took effect; or

                     (b)  within such further period as the FWC allows under subsection (3).

             (3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

                     (a)  the reason for the delay; and

                     (b)  whether the person first became aware of the dismissal after it had taken effect; and

                     (c)  any action taken by the person to dispute the dismissal; and

                     (d)  prejudice to the employer (including prejudice caused by the delay); and

                     (e)  the merits of the application; and

                      (f)  fairness as between the person and other persons in a similar position.

395  Application fees

             (1)  An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

             (2)  The regulations may prescribe:

                     (a)  a fee for making an application to the FWC under this Division; and

                     (b)  a method for indexing the fee; and

                     (c)  the circumstances in which all or part of the fee may be waived or refunded.

396  Initial matters to be considered before merits

                   The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

                     (a)  whether the application was made within the period required in subsection 394(2);

                     (b)  whether the person was protected from unfair dismissal;

                     (c)  whether the dismissal was consistent with the Small Business Fair Dismissal Code;

                     (d)  whether the dismissal was a case of genuine redundancy.

397  Matters involving contested facts

                   The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

398  Conferences

             (1)  This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.

             (2)  Despite subsection 592(3), the FWC must conduct the conference in private.

             (3)  The FWC must take into account any difference in the circumstances of the parties to the matter in:

                     (a)  considering the application; and

                     (b)  informing itself in relation to the application.

             (4)  The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:

                     (a)  considers the application; and

                     (b)  informs itself in relation to the application.

399  Hearings

             (1)  The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

                     (a)  the views of the parties to the matter; and

                     (b)  whether a hearing would be the most effective and efficient way to resolve the matter.

             (2)  If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

             (3)  The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

399A  Dismissing applications

             (1)  The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

                     (a)  failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

                     (b)  failed to comply with a direction or order of the FWC relating to the application; or

                     (c)  failed to discontinue the application after a settlement agreement has been concluded.

Note 1:       For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2:       The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

             (2)  The FWC may exercise its power under subsection (1) on application by the employer.

             (3)  This section does not limit when the FWC may dismiss an application.

400  Appeal rights

             (1)  Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

             (2)  Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

400A  Costs orders against parties

             (1)  The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

             (2)  The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

             (3)  This section does not limit the FWC’s power to order costs under section 611.

401  Costs orders against lawyers and paid agents

             (1)  This section applies if:

                     (a)  an application for an unfair dismissal remedy has been made under section 394; and

                     (b)  a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and

                     (c)  under section 596, the person is required to seek the FWC’s permission to be represented by the representative.

          (1A)  The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

                     (a)  the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

                     (b)  of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.

             (2)  The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.

             (3)  This section does not limit the FWC’s power to order costs under section 611.

402  Applications for costs orders

                   An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

                     (a)  the FWC determines the matter; or

                     (b)  the matter is discontinued.

403  Schedule of costs

             (1)  A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order:

                     (a)  under section 611 in relation to a matter arising under this Part; or

                     (b)  under section 400A or 401;

including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

             (2)  If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611 in relation to a matter arising under this Part, or awarding costs under section 400A or 401, the FWC:

                     (a)  is not limited to the items of expenditure appearing in the schedule; but

                     (b)  if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

404  Security for costs

                   The procedural rules may provide for the furnishing of security for the payment of costs in relation to matters arising under this Part.

405  Contravening orders under this Part

                   A person to whom an order under this Part applies must not contravene a term of the order.

Note:          This section is a civil remedy provision (see Part 4‑1).

General protections

Division 1—Introduction

334  Guide to this Part

This Part provides general workplace protections.

Division 2 sets out the circumstances in which this Part applies.

Division 3 protects workplace rights, and the exercise of those rights.

Division 4 protects freedom of association and involvement in lawful industrial activities.

Division 5 provides other protections, including protection from discrimination.

Division 6 deals with sham arrangements.

Division 7 sets out rules for the purposes of establishing contraventions of this Part.

Division 8 deals with compliance. In most cases, a general protections dispute that involves dismissal will be dealt with by a court only if the dispute has not been resolved by the FWC.

335  Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Note:          See also Division 2 of Part 6‑4A (TCF contract outworkers taken to be employees in certain circumstances).

336  Objects of this Part

(1)  The objects of this Part are as follows:

(a)  to protect workplace rights;

(b)  to protect freedom of association by ensuring that persons are:

(i)  free to become, or not become, members of industrial associations; and

(ii)  free to be represented, or not represented, by industrial associations; and

(iii)  free to participate, or not participate, in lawful industrial activities;

(c)  to provide protection from workplace discrimination;

(d)  to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

(2)  The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).

Division 2—Application of this Part

337  Application of this Part

This Part applies only to the extent provided by this Division.

Note:          Sections 30G and 30R extend the operation of this Part in a referring State.

338  Action to which this Part applies

(1)  This Part applies to the following action:

(a)  action taken by a constitutionally‑covered entity;

(b)  action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally‑covered entity;

(c)  action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally‑covered entity:

(i)  to take, or not take, particular action in relation to another person; or

(ii)  to threaten to take, or not take, particular action in relation to another person;

(d)  action taken in a Territory or a Commonwealth place;

(e)  action taken by:

(i)  a trade and commerce employer; or

(ii)  a Territory employer;

that affects, is capable of affecting or is taken with intent to affect an employee of the employer;

(f)  action taken by an employee of:

(i)  a trade and commerce employer; or

(ii)  a Territory employer;

that affects, is capable of affecting or is taken with intent to affect the employee’s employer.

(2)  Each of the following is a constitutionally‑covered entity:

(a)  a constitutional corporation;

(b)  the Commonwealth;

(c)  a Commonwealth authority;

(d)  a body corporate incorporated in a Territory;

(e)  an organisation.

(3)  A trade and commerce employer is a national system employer within the meaning of paragraph 14(d).

(4)  A Territory employer is a national system employer within the meaning of paragraph 14(f).

339  Additional effect of this Part

In addition to the effect provided by section 338, this Part also has the effect it would have if any one or more of the following applied:

(a)  a reference to an employer in one or more provisions of this Part were a reference to a national system employer;

(b)  a reference to an employee in one or more provisions of this Part were a reference to a national system employee;

(c)  a reference to an industrial association in one or more provisions of this Part were a reference to an organisation, or another association of employees or employers, a purpose of which is the protection and promotion of the interests of national system employees or national system employers in matters concerning employment;

(d)  a reference to an officer of an industrial association in one or more provisions of this Part were a reference to an officer of an organisation;

(e)  a reference to a person, another person or a third person in one or more provisions of this Part were a reference to a constitutionally‑covered entity;

(f)  a reference to a workplace law in one or more provisions of this Part were a reference to a workplace law of the Commonwealth;

(g)  a reference to a workplace instrument in one or more provisions of this Part were a reference to a workplace instrument made under, or recognised by, a law of the Commonwealth;

(h)  a reference to an industrial body in one or more provisions of this Part were a reference to an industrial body performing functions or exercising powers under a law of the Commonwealth.

Division 3—Workplace rights

340  Protection

(1)  A person must not take adverse action against another person:

(a)  because the other person:

(i)  has a workplace right; or

(ii)  has, or has not, exercised a workplace right; or

(iii)  proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)  to prevent the exercise of a workplace right by the other person.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(2)  A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

341  Meaning of workplace right

Meaning of workplace right

(1)  A person has a workplace right if the person:

(a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)  is able to make a complaint or inquiry:

(i)  to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)  if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)  Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)  a conference conducted or hearing held by the FWC;

(b)  court proceedings under a workplace law or workplace instrument;

(c)  protected industrial action;

(d)  a protected action ballot;

(e)  making, varying or terminating an enterprise agreement;

(f)  appointing, or terminating the appointment of, a bargaining representative;

(g)  making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)  agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i)  making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);

(j)  dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)  any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

(3)  A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note:          Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees

(4)  Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

(5)  Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 or 6‑3A (which deal with transfer of business).

342  Meaning of adverse action

(1)  The following table sets out circumstances in which a person takes adverse action against another person.

 

Meaning of adverse action
Item Column 1

Adverse action is taken by …Column 2

if …1an employer against an employeethe employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c)  alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.2a prospective employer against a prospective employeethe prospective employer:

(a) refuses to employ the prospective employee; or

(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.3a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractorthe principal:

(a) terminates the contract; or

(b) injures the independent contractor in relation to the terms and conditions of the contract; or

(c)  alters the position of the independent contractor to the independent contractor’s prejudice; or

(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or

(e)  refuses to supply, or agree to supply, goods or services to the independent contractor.4a person (the principal) proposing to enter into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractorthe principal:

(a) refuses to engage the independent contractor; or

(b) discriminates against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor; or

(c)  refuses to make use of, or agree to make use of, services offered by the independent contractor; or

(d) refuses to supply, or agree to supply, goods or services to the independent contractor.5an employee against his or her employerthe employee:

(a) ceases work in the service of the employer; or

(b) takes industrial action against the employer.6an independent contractor against a person who has entered into a contract for services with the independent contractorthe independent contractor:

(a) ceases work under the contract; or

(b) takes industrial action against the person.7an industrial association, or an officer or member of an industrial association, against a personthe industrial association, or the officer or member of the industrial association:

(a) organises or takes industrial action against the person; or

(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or

(c)  if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or

(d) if the person is a member of the association—imposes 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).

(2)  Adverse action includes:

(a)  threatening to take action covered by the table in subsection (1); and

(b)  organising such action.

(3)  Adverse action does not include action that is authorised by or under:

(a)  this Act or any other law of the Commonwealth; or

(b)  a law of a State or Territory prescribed by the regulations.

(4)  Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:

(a)  engaged in protected industrial action; and

(b)  employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.

343  Coercion

(1)  A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)  exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)  exercise, or propose to exercise, a workplace right in a particular way.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(2)  Subsection (1) does not apply to protected industrial action.

344  Undue influence or pressure

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

(a)  make, or not make, an agreement or arrangement under the National Employment Standards; or

(b)  make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

(c)  agree to, or terminate, an individual flexibility arrangement; or

(d)  accept a guarantee of annual earnings; or

(e)  agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

Note 1:       This section is a civil remedy provision (see Part 4‑1).

Note 2:       This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)).

345  Misrepresentations

(1)  A person must not knowingly or recklessly make a false or misleading representation about:

(a)  the workplace rights of another person; or

(b)  the exercise, or the effect of the exercise, of a workplace right by another person.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(2)  Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

Division 4—Industrial activities

346  Protection

A person must not take adverse action against another person because the other person:

(a)  is or is not, or was or was not, an officer or member of an industrial association; or

(b)  engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)  does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Note:          This section is a civil remedy provision (see Part 4‑1).

347  Meaning of engages in industrial activity

A person engages in industrial activity if the person:

(a)  becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

(b)  does, or does not:

(i)  become involved in establishing an industrial association; or

(ii)  organise or promote a lawful activity for, or on behalf of, an industrial association; or

(iii)  encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

(iv)  comply with a lawful request made by, or requirement of, an industrial association; or

(v)  represent or advance the views, claims or interests of an industrial association; or

(vi)  pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or

(vii)  seek to be represented by an industrial association; or

(c)  organises or promotes an unlawful activity for, or on behalf of, an industrial association; or

(d)  encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or

(e)  complies with an unlawful request made by, or requirement of, an industrial association; or

(f)  takes part in industrial action; or

(g)  makes a payment:

(i)  that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or

(ii)  to which an employee is not entitled because of that Division.

348  Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

Note:          This section is a civil remedy provision (see Part 4‑1).

349  Misrepresentations

(1)  A person must not knowingly or recklessly make a false or misleading representation about either of the following:

(a)  another person’s obligation to engage in industrial activity;

(b)  another person’s obligation to disclose whether he or she, or a third person:

(i)  is or is not, or was or was not, an officer or member of an industrial association; or

(ii)  is or is not engaging, or has or has not engaged, in industrial activity.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(2)  Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

350  Inducements—membership action

(1)  An employer must not induce an employee to take, or propose to take, membership action.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(2)  A person who has entered into a contract for services with an independent contractor must not induce the independent contractor to take, or propose to take, membership action.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(3)  A person takes membership action if the person becomes, does not become, remains or ceases to be, an officer or member of an industrial association.

Division 5—Other protections

351  Discrimination

(1)  An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(2)  However, subsection (1) does not apply to action that is:

(a)  not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b)  taken because of the inherent requirements of the particular position concerned; or

(c)  if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i)  in good faith; and

(ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3)  Each of the following is an anti‑discrimination law:

(aa)  the Age Discrimination Act 2004;

(ab)  the Disability Discrimination Act 1992;

(ac)  the Racial Discrimination Act 1975;

(ad)  the Sex Discrimination Act 1984;

(a)  the Anti‑Discrimination Act 1977 of New South Wales;

(b)  the Equal Opportunity Act 2010 of Victoria;

(c)  the Anti‑Discrimination Act 1991 of Queensland;

(d)  the Equal Opportunity Act 1984 of Western Australia;

(e)  the Equal Opportunity Act 1984 of South Australia;

(f)  the Anti‑Discrimination Act 1998 of Tasmania;

(g)  the Discrimination Act 1991 of the Australian Capital Territory;

(h)  the Anti‑Discrimination Act of the Northern Territory.

352  Temporary absence—illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note:          This section is a civil remedy provision (see Part 4‑1).

353  Bargaining services fees

(1)  An industrial association, or an officer or member of an industrial association, must not:

(a)  demand; or

(b)  purport to demand; or

(c)  do anything that would:

(i)  have the effect of demanding; or

(ii)  purport to have the effect of demanding;

payment of a bargaining services fee.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

             (2)  A bargaining services fee is a fee (however described) payable:

(a)  to an industrial association; or

(b)  to someone in lieu of an industrial association;

wholly or partly for the provision, or purported provision, of bargaining services, but does not include membership fees.

             (3)  Bargaining services are services provided by, or on behalf of, an industrial association in relation to an enterprise agreement, or a proposed enterprise agreement (including in relation to bargaining for, or the making, approval, operation, variation or termination of, the enterprise agreement, or proposed enterprise agreement).

Exception for fees payable under contract

(4)  Subsection (1) does not apply if the fee is payable to the industrial association under a contract for the provision of bargaining services.

354  Coverage by particular instruments

(1)  A person must not discriminate against an employer because:

(a)  employees of the employer are covered, or not covered, by:

(i)  provisions of the National Employment Standards; or

(ii)  a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

(iii)  an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or

(b)  it is proposed that employees of the employer be covered, or not be covered, by:

(i)  a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or

(ii)  an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(2)  Subsection (1) does not apply to protected industrial action.

355  Coercion—allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)  employ, or not employ, a particular person; or

(b)  engage, or not engage, a particular independent contractor; or

(c)  allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or

(d)  designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.

Note:          This section is a civil remedy provision (see Part 4‑1).

356  Objectionable terms

A term of a workplace instrument, or an agreement or arrangement (whether written or unwritten), has no effect to the extent that it is an objectionable term.

Division 6—Sham arrangements

357  Misrepresenting employment as independent contracting arrangement

(1)  A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

Note:          This subsection is a civil remedy provision (see Part 4‑1).

(2)  Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:

(a)  did not know; and

(b)  was not reckless as to whether;

the contract was a contract of employment rather than a contract for services.

358  Dismissing to engage as independent contractor

An employer must not dismiss, or threaten to dismiss, an individual who:

(a)  is an employee of the employer; and

(b)  performs particular work for the employer;

in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.

Note:          This section is a civil remedy provision (see Part 4‑1).

359  Misrepresentation to engage as independent contractor

A person (the employer) that employs, or has at any time employed, an individual to perform particular work must not make a statement that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform, as an independent contractor, the same, or substantially the same, work for the employer.

Note:          This section is a civil remedy provision (see Part 4‑1).

Division 7—Ancillary rules

360  Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361  Reason for action to be presumed unless proved otherwise

(1)  If:

(a)  in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)  taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)  Subsection (1) does not apply in relation to orders for an interim injunction.

362  Advising, encouraging, inciting or coercing action

(1)  If:

(a)  for a particular reason (the first person’s reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and

(b)  the action, if taken by the second person for the first person’s reason, would contravene a provision of this Part;

the first person is taken to have contravened the provision.

(2)  Subsection (1) does not limit section 550.

363  Actions of industrial associations

(1)  For the purposes of this Part, each of the following is taken to be action of an industrial association:

(a)  action taken by the committee of management of the industrial association;

(b)  action taken by an officer or agent of the industrial association acting in that capacity;

(c)  action taken by a member, or group of members, of the industrial association if the action is authorised by:

(i)  the rules of the industrial association; or

(ii)  the committee of management of the industrial association; or

(iii)  an officer or agent of the industrial association acting in that capacity;

(d)  action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity;

(e)  if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.

(2)  Paragraphs (1)(c) and (d) do not apply if:

(a)  the committee of management of the industrial association; or

(b)  a person authorised by the committee; or

(c)  an officer of the industrial association;

has taken all reasonable steps to prevent the action.

(3)  If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:

(a)  that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and

(b)  that the person, or a person in the group, had that state of mind.

(4)  Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).

364  Unincorporated industrial associations

Person includes unincorporated industrial association

(1)  For the purposes of this Part, a reference to a person includes a reference to an unincorporated industrial association.

Liability for contraventions by unincorporated industrial associations

(2)  A contravention of this Part that would otherwise be committed by an unincorporated industrial association is taken to have been committed by each member, officer or agent of the industrial association who:

(a)  took, or took part in, the relevant action; and

(b)  did so with the relevant state of mind.