As most practitioners are aware, an enterprise agreement cannot be registered by the Fair Work Commission unless the Commission is satisfied that the proposed agreement renders the employees who are to be covered by it better off overall than if the applicable award is applied. But how is the BOOT test applied? Here is the […]
The height of the bar which must be jumped to appeal successfully in the Federal Court appears to have risen even further. While I have no intellectual problem at all with either the outcome of an adverse action case before a single judge in the Federal Court, or indeed the result of an unsuccessful appeal […]
The prohibition in the Fair Work Act of the taking of adverse action against another person for a proscribed reason, for example for exercising a workplace right, is featuring more and more frequently in decisions of the Federal Court of Australia and the Federal Circuit Court of Australia. What follows is a summary of the […]
The general protections of the Fair Work Act render it unlawful for an employer to take adverse action against an employee because he or she has exercised or proposes to exercise a workplace right. I have several employer clients which have been sued for a contravention of the Act by initiating an investigation or inquiry […]
The extent to which an employee must be disadvantaged by an employer’s actions to constitute adverse action for the purposes of the general protections of the Fair Work Act is evident in the following passage from a recent judgment of the Federal Circuit Court of Australia. “In my opinion, in determining whether an action or […]
The common law doctrine of repudiation of contract is alive and well in the statutory fair work system. Where an employer fundamentally breaches an employment contract, it is open to the affected employee to treat the employer’s actions as constituting a repudiation of the employment contract (if the breach is sufficiently serious…..for example a persistent […]
In the headnote to a recent Federal Circuit Court case, the case was described by the editor as being a claim for compensation for adverse action because a former employee has exercised a workplace right by the making of a “complaint made regarding proper management of projects which the applicant was required to oversee”. I […]
There has been some judicial controversy about what constitutes adverse action for the purposes of the general protections’ provisions of the Fair Work Act 2009. Here is a passage from a case which explains the concept. “In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia & Ors[63] the High Court discussed the expression injure […]
The Fair Work Act renders it unlawful for a person or corporation to take adverse action against another person for a prohibited reason. For example it is a breach of the general protections and thus unlawful for adverse action to be taken against a person because he or she has exercised a workplace right or […]
The general protections of the Fair Work Act prohibit inter alia the taking of adverse action by an employer against an employee because the employee has exercised a workplace right. The termination of the employment of an employee is self evidently the taking of adverse action, but what other conduct constitutes adverse action? “For there […]
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