110ABAdverse conduct for remuneration disclosure reason

1. For the purposes of section 103(1)(ja), an employer engages in adverse conduct for a remuneration disclosure reason if the employer or a representative of the employer, for a remuneration disclosure reason,—

2. dismisses an employee; or
3. refuses or omits to offer or afford to the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or
4. subjects the employee to any detriment in circumstances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment; or
5. retires the employee, or requires or causes the employee to retire or resign.

6. For the purposes of subsection (1), conduct described in that subsection is engaged in for a remuneration disclosure reason if it is engaged in because—

7. an employee discusses their remuneration with any other person, whether or not that includes disclosing their remuneration to that person; or
8. an employee inquires into the remuneration of another employee, whether or not that other employee discusses or discloses their remuneration to the employee inquiring; or
9. an employee—
   1. participates in a discussion with the employee referred to in paragraph (a) about that employee’s remuneration; or
   2. receives an inquiry about their remuneration from the employee referred to in paragraph (b).

10. An employer may be found to have engaged in adverse conduct for a remuneration disclosure reason only if the remuneration disclosure reason was a substantial reason for the conduct.

11. For the purposes of subsection (3), a remuneration disclosure reason is presumed to be a substantial reason for the conduct unless the employer proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

12. To avoid doubt, an employer also engages in adverse conduct if the employer or a representative of the employer, in relation to the employee,—

13. organises to take any action referred to in subsection (1) or threatens to organise or take that action; or
14. requests, instructs, induces, encourages, authorises, or assists another person to engage in adverse conduct for a remuneration disclosure reason.

15. In this section,—

    detriment includes anything that has a detrimental effect on the employee’s employment, job performance, or job satisfaction

    remuneration—

    1. includes any of the following:
       1. salary or wages (including payment for overtime and penal rates):
       2. allowances:
       3. productivity-based, bonus, or incentive payments (including commission):
       4. any employer contribution to a superannuation scheme for the benefit of the employee:
       5. any other type of payment for work; but
    2. does not include any payment or other benefit received by the employee as an owner of the business.

16. This section does not require an employee to discuss their remuneration with, or disclose their remuneration to, any other person.