Adverse action and the workplace tango

Matthew Robinson, Partner at Citation Legal, examines the evolution of adverse action claims and discusses key trends influencing their misuse to avoid disciplinary actions and leverage exit negotiations.
Adverse action and the workplace tango

Adverse action claims were born with the enactment of the Fair Work Act 2009 (Cth) (the Act). Their origin represented an evolutionary advancement of the freedom of association provisions in Part XA of the Workplace Relations Act 1996 (Cth) and then Part 16 of WorkChoices introduced in 2006.

However, with the introduction of the Fair Work Act 2009 (Cth), freedom of association was given a bigger and tougher sister in adverse action; it provided protection against retribution for a much broader range of industrial rights, entitlements, and processes that workers undertake in the workplace. The aim was to allow workers to raise complaints, concerns, and inquiries about their workplace rights and not be punished for doing so.

Although, despite these noble intentions, after 14 years of adverse action we’re seeing its practical deployment being skewed into something quite different.

Want to read more? Read the full version of this article (and more!) by downloading the latest edition of our annual Workplace Relations Review here.

About our author

Matthew Robinson is a Partner and award-winning Solicitor with Citation Legal. Based in our Sydney office, he has been advising clients on industrial relations and employment matters for almost twenty-five years. He is an accredited specialist in employment and industrial law. An experienced litigator, he has special expertise in assisting clients operating in the manufacturing sector.

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