Section 342 — Fair Work Act 2009: 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 ... 1 an employer against an employee the 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. 2 a prospective employer against a prospective employee the 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. 3 a 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 contractor the 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. 3A a digital labour platform operator that has entered into a contract with an employee-like worker for use of, or access to, a digital labour platform against the employee-like worker the digital labour platform operator: (a) terminates the contract; or (b) injures the employee-like worker in relation to the terms and conditions of the contract; or (c) alters the position of the employee-like worker to the employee-like worker’s prejudice; or (d) refuses to make use of, or agree to make use of, services offered by the employee-like worker; or (e) refuses to provide to the employee-like worker use of or access to the digital labour platform. 4 a 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 contractor the 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. 4A a digital labour platform operator that proposes to enter into a contract with an employee-like worker for use of, or access to, a digital labour platform against the employee-like worker the digital labour platform operator: (a) refuses to agree to provide to the employee-like worker use of, or access to, the digital labour platform; or (b) discriminates against the employee-like worker in relation to the terms and conditions on which the digital labour platform operator agrees to provide to the employee-like worker use of, or access to, the digital labour platform; or (c) refuses to make use of, or agree to make use of, services offered by the employee-like worker. 5 an employee against his or her employer the employee: (a) ceases work in the service of the employer; or (b) takes industrial action against the employer. 6 an independent contractor against a person who has entered into a contract for services with the independent contractor the independent contractor: (a) ceases work under the contract; or (b) takes industrial action against the person. 6A an employee-like worker against a digital labour platform operator that has entered into a contract with the employee-like worker for use of, or access to, a digital labour platform the employee-like worker takes industrial action against the digital labour platform operator. 7 an industrial association, or an officer or member of an industrial association, against a person the 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). 8 an industrial association, or an officer or member of an industrial association, against an employee-like worker the industrial association, or the officer or member of the industrial association, takes action that has the effect, directly or indirectly, of prejudicing the employee-like worker in relation to a contract for use of, or access to, a digital labour platform. (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.