* Well, not really…but we got your attention! And the heading is not as misleading as you might think…

Of course, the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), and in particular, the provisions prohibiting adverse action by employers, employees and unions, do not apply to NSW Government entities or local government.

However, a recent decision from the NSW Industrial Relations Commission serves as a useful reminder that there are similar, under-utilised provisions in the Industrial Relations Act 1996 (NSW) (IR Act), which have been interpreted to operate in a very similar manner to an adverse action claim.

In Fire Brigade Employees' Union (on behalf of Wayne Challior) v Fire and Rescue NSW [2016] NSWIRComm 1024, a relatively novel claim was made under section 213 of the IR Act. In particular, this section (along with section 210) protects employees from victimisation.

Now, I know what you are thinking. Protection from victimisation is completely different to an adverse action claim under the FW Act, which is designed to protect individuals from exercising (or not exercising) a workplace right. However, on closer inspection, the similarities between a claim under section 213 of the IR Act and an adverse action claim in the Fair Work Commission are very real.

  • Both claims afford protection to employees who seek to exercise basic workplace rights, such as the right to a benefit under an industrial law or instrument, or the right to make a complaint.
  • Both claims involve a reverse onus of proof being imposed on the Respondent.
  • Where there are multiple reasons behind the imposition of an injury or detriment to an employee, the prohibited reason for the 'adverse action' needs to only be a substantial and operative factor behind the decision.
  • Both claims must be made within 21 days of the action occurring.

In case you were not already convinced, in this recent decision, Commissioner Stanton referred to the High Court and Full Court of the Federal Court authorities on adverse action cases in interpreting these provisions of the IR Act. This is not the first time the NSW Industrial Relations Commission has had regard to these authorities in interpreting the provisions in sections 210 and 213.

In this case involving the Fire Brigade Employees' Union, the IR Act provisions were used by an employee and member of the union to assert that they had been subject to victimisation by their employer, Fire and Rescue NSW, in the form of being disciplined, after he included his image and position in a political advertisement used in the NSW election in 2015. In this way, the employee used sections 210 and 213 of the IR Act to assert that he was the subject of victimisation for engaging in political activities.

The applicant was unsuccessful, with Fire and Rescue NSW proving that the decision made to reprimand the applicant was not borne from his engagement in a political activity, but from breaches of the Code of Conduct and Regulation.

Rather curiously, the Union did not require the decision-maker who took the disciplinary action for cross-examination. His unchallenged affidavit evidence was that he took disciplinary action against the employee because he sent an email to all staff reminding them of their obligations to not engage in political activities while on duty, and it was apparent from the campaign materials circulated by a candidate in the State election that the employee had contravened this obligation.

In light of the authorities on adverse action cases, such as Barclay and BHP Coal, the NSW Industrial Relations Commission accepted that its task was to establish whether or not Fire and Rescue NSW had put on sufficient evidence to meet the reverse onus of proof and establish that the employee's participation in political activities was not a 'substantial and operative' reason behind the disciplinary action taken. Commissioner Stanton accepted that this was a finding of fact to be made by the Commission, on the balance of probabilities, with reference to the available evidence and inferences, and with particular reference to the evidence of the decision-maker.

Unsurprisingly, as the decision-maker was not cross-examined, his evidence necessarily had to be accepted, and this was ultimately fatal to the employee's application.

Notwithstanding the applicant's lack of success, the case serves as a useful reminder to all NSW Government entities of these somewhat dormant provisions in the IR Act. Very few cases have been pursued under section 213 of the IR Act, even though the NSW Industrial Relations Commission have acknowledged that any such claims should be treated similarly to adverse action claims, which have proven increasingly popular in the Federal sphere.

To make them even more enticing for Applicants, they involve a reverse onus of proof on the employer, and the Commission has significant and wide-ranging powers to make a variety of orders, including:

  • reinstatement or re-employment
  • reimbursement of remuneration or financial benefits lost or foregone
  • ordering the promotion of an employee in their employment
  • ordering an agency to employ a prospective employee.

It is critical that NSW Government agencies be alive to the possibility of these claims being brought by government sector employees, and not assume that, just because the adverse action provisions do not apply, there is no recourse for employees who are subject to 'adverse action' in their employment. To the contrary, there is an analogous statutory regime in the IR Act, with the NSW Industrial Relations Commission empowered to make a range of significant orders to remedy any conduct by a NSW Government agency against an employee that constitutes victimisation or 'adverse action'.

Key Points for Employers

  • There is a statutory regime in the Industrial Relations Act 1996 binding NSW Government agencies that operates similarly to adverse action claims in the Federal sphere.
  • While this statutory regime is not often utilised by government sector employees, it empowers the NSW Industrial Relations Commission to make a range of significant orders, including orders to promote an employee or employ a prospective employee.
  • The NSW Industrial Relations Commission has accepted that claims brought under this statutory regime by government sector employees against a NSW Government agency are to be considered in a similar fashion to adverse action claims, specifically referring to recent High Court authorities on adverse action cases in stating that the Commission will scrutinise the substantial and operative reasons why detrimental action has been taken against the employee.