5 September 2017

Adverse Action and Labour Hire Employees

A recent decision of the Fair Work Commission sheds further light on the adverse action provisions of the Fair Work Act as they relate to employees hosted under labour hire arrangements.  These issues could also apply to apprentices and trainees hosted by a third party under a group training arrangements.  The decision considered whether adverse action extended to employees of independent contractors.  The  judge found that the refusal of the host to continue employing the employee fell within the scope of the adverse action provisions of the Fair Work Act as it applies to contractors and that the employee of a contractor is covered by the provisions as well as the contractor (which would be a GTO).

The reason that the principal (in this case the mine) stopped using the driver's services was therefore crucial in determining whether the mine had taken adverse action against the contractor's employee.  In this case it was found that it was her lack of ability rather than the fact that she had complained about health and safety that resulted in no adverse action finding being made, but the ruling confirms that the decision of a host to no longer use a labour hire (or GT employee) can be subject to an adverse action claim and the host will have to establish the that the reason for sending the employee back to the contractor does not fall within the meaning of adverse action as defined in S. 342 of the Fair Work Act.

Construction, Forestry, Mining and Energy Union v Hunter Valley Energy Coal Pty Ltd [2017] FCCA 1559 (18 July 2017)