Employment and Labor Law

Contact: Matthew Payten, Special Counsel; Carter Newell (Queensland, Australia) 

Under s 351 of the Fair Work Act 2009 (Cth)(FW Act), an employer is prohibited from taking action adverse against an employee because of a defined attribute, such as race, sex, age, physical or mental disability or marital status. A reverse onus of proof applies, in that it falls to the employer to prove that their reasons for taking action were not unlawful. As a result of this reverse onus, the adverse action laws have proven a fertile ground for employees. The recent decision in RailPro Services Pty Ltd v Flavel¹ provides a useful illustration of the operation of the adverse action laws in the context of allegations of discrimination, and the difference between adverse action discrimination under the FW Act and the state and federal anti-discrimination laws.

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