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Connexus : Issue 37
New far-reaching legal rights for workers mean employers need to check their policies. By Donna Brown Adverse action, a new employee protection added to the Fair Work Act 2009, has significant implications for employers. Taking action against an employee for exercising a workplace right, or preventing an employee from exercising a workplace right, could be deemed to be adverse action. Examples of such treatment could include cutting overtime, changing hours of work, cancelling annual leave, demotion, termination of employment, or because an employee has joined a union or taken parental leave. Even threatening to take adverse action in such circumstances where an employee wishes to exercise a workplace right is unlawful. The employee's alleged reason could also be some form of discrimination, and prospective or former employees can also bring claims of adverse action. For adverse action to be proven, a causal nexus (or chain of circumstances) has to be established, showing that the employer's motivation for taking the action was due to the employee's exercising of a workplace right. However, the new provisions have a reverse onus of proof. That means it will be presumed that the employer took adverse action unless they can prove otherwise. The potential remedies under the Act are very broad. They include uncapped compensation and the award of an interim injunction to restrain an employer from dismissing an employee if a threat of termination has been made or appears likely. Employers also face penalties of up to $33,000 for each infringement. BROADER GROUNDS The most significant development of the new provisions is that the grounds for discrimination are much broader than under the previous Workplace Relations Act 1996. The list includes family and carer's responsibilities, requests for flexible working arrangements and the right to request extended unpaid parental leave. An employee, who is a parent or carer of a child under school age, or of a child under the age of 18 with a disability, now has the right to request flexible work arrangements. Employees also have the right to request extended unpaid parental leave in relation to the birth or adoption of a child if they work full or part-time and have had at least 12 months of continuous service or if they are long-term casual employees who have had regular and systematic work. These rights were introduced as part of the National Employment Standards (NES). Once an employee has made a request for a flexible work arrangement, the employer must provide a written response within 21 days indicating whether the request is granted or refused. If the request is refused, the response must give reasons, which can only be based on reasonable business grounds. Connexus www.abacus.org.au 40 PEOPLE Adverse action Adverse action will undoubtedly affect all aspects of how employers engage with their employees...