s340-342: ss 340 to 342 No adverse action because of a workplace right
A person does not take adverse action (for an employer: dismissing, injuring the employee in employment, altering the employee's position to their prejudice, or discriminating between employees; for a prospective employer: refusing to employ or discriminating in terms offered; for a principal: terminating, injuring, prejudicing or refusing to use or supply an independent contractor; including threats and organising such action) against another person because the person has, has exercised or proposes to exercise, or has not exercised, a workplace right, to prevent its exercise, or because a third person exercised a workplace right for their benefit. Workplace rights include entitlements and roles under workplace laws and instruments, initiating or participating in processes (FWC matters, bargaining, IFAs, cashing out, flexible work requests, casual conversion, dispute settlement) and making complaints or inquiries about compliance or about one's employment. Action authorised by law is not adverse action. The reason is presumed unless the employer proves otherwise (s 361), and it is enough that the prohibited reason is one of the reasons (s 360).
Our statement of the clause of Australia Fair Work Act 2009 (Cth), held and verified: cite it as s340-342. The instrument verbatim is not quoted here; the held framework carries the reading.
The evidence this duty asks you to hold
Decision records for dismissals, demotions and disciplinary action documenting the reasons and decision-maker; Check in adverse decisions for recent complaints, inquiries, leave requests or flexible work requests by the employee; Training records for managers on general protections and the reverse onus
What usually goes missing
Dismissal soon after an employee complains about pay with no documented independent reasons; Decision-maker unable to give evidence of their actual reasons; Contractors dropped after raising payment disputes
Where this lands in an audit
In Equal Pay Auditor this control informs the same-work screen, the category figures and the remediation steps, which carry their article citations on the result.