For the purposes of s 340 and s 346, the identification of 'adverse action' does not require proof of an 'intentional act' or mental element in the sense that the employer subjectively intended to cause the alteration of the employee's position; rather, the question is whether the action objectively constitutes an 'adverse action' as defined in s 342, with the employer's mental element being relevant only at the second stage of determining whether the adverse action was taken 'because' of a prohibited reason.

The making of a negative assessment by an employer in relation to an employee, where that assessment is an important step in a process that affects the continuance of the employment relationship or marks a deterioration in benefits enjoyed under the employment relationship (such as a renewal assessment affecting authorisation to work), and the subsequent provision of that negative assessment to a third party whose decision may affect the employee's continued employment, constitute 'adverse action' under s 342(1)(c) by altering the position of the employee to their prejudice in a real and substantial manner.

A general protections application is not intended to provide an opportunity for an applicant to raise whatever issues about the validity of steps taken before dismissal; the crucial issue is the causal relationship between adverse action and one or more of the proscribed factors.

Accessorial liability under s550 of the Fair Work Act may be found where a person has a practical connection with, or is linked in purpose with, the contravention by the corporate entity.

The phrase 'injure an employee in his or her employment' in s342(1)(b) covers 'injury of any compensable kind' and an expression covering an 'adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question' falls within s342(1)(c).

Section 46PP of the AHRC Act provides statutory power to grant interim injunctions to preserve status quo or rights. This is sui generis relief distinct from equitable interlocutory injunctions and is designed to protect the complaint-making and resolution process, facilitated by interim preservation of status quo ensuring a level playing field while conciliation is pursued.

The usual tests for interim injunctions (serious question to be tried, adequate remedy in damages, balance of convenience) apply to s 46PP relief but must be applied having regard to the statutory context. A claim without merit would not form basis for injunction, but a reasonably strong arguable case may require less weight on balance of convenience factors; conversely, a weak case requires overwhelming balance of convenience in applicant's favour.

Section 46PP of the AHRC Act creates a statutory remedy that is sui generis and operates in a different context from equitable interlocutory injunctions. It is designed to protect the complaint-making and resolution process. The usual tests apply but adapted to the statutory context: a claim without merit will not succeed, but the absence of a formal 'colour of right to final relief' is not fatal.

Section 340(1)(b) prohibits taking adverse action 'to prevent the exercise of a workplace right'. The words 'to prevent' mean 'in order to prevent' or 'with a view to preventing', and encompass putting an obstacle in the way of exercising a presently held right or a right that may arise at some future date.

A person takes action for a particular reason if the reasons for the action include that reason. For s 340(1)(b), the proscribed reason must be a substantial and operative reason for taking the adverse action, not merely a contributing factor or incidental consequence.

Suspension from employment on pay may constitute adverse action

Being the subject of a disciplinary process including an investigation may constitute adverse action