Hi there. If your husband is on an award or registered workplace agreement, the employer may be required to undertake a consultation process pursuant to the award or agreement before any major workplace changes, such as a restructure. The consultation process sets out things the employer must do, such as notifying employees who may be affected by the changes, discussing steps to minimise negative effects and listening to employees’ feedback. If your husband is on an award or agreement and this consultation process did not occur, the employer may have breached industrial laws. Your husband may want to consider lodging a complaint with the Fair Work Ombudsman (www.fairwork.gov.au).

If your husband is not on an award or agreement, then it is unlikely that he has many legal options in his current situation. In Australia, the law says that workers have a number of protected rights. One of these rights is to not be subject to “adverse action” at the hands of your employer. Adverse action encompasses many things and includes demoting an employee. The decision to demote an employee is unlawful if it is in response to the employee having exercised a workplace right (e.g. receiving a benefit under their employment, making an official complaint, etc), joining or refusing to join a union, partaking or not partaking in industrial activity (e.g. strike), or because of their race, sex, age, disability, sexual orientation, etc. You have said that your husband was demoted because of a business restructure, not because he exercised a workplace right. If this is correct, then it is unlikely that the employer has broken the law.

Sometimes a demotion will amount to a constructive dismissal. However, under the Fair Work Act 2009 (Cth), a person is not dismissed if their demotion does not involve a significant reduction in his or her remuneration. You said your husband’s salary will remain the same in the new junior position, which means he has not been “dismissed” in the eyes of the law. In the event his employment is terminated entirely, he may have grounds for unfair dismissal if he was dismissed in a harsh, unjust or unreasonable manner. He would have 21 days from the date of termination to lodge an unfair dismissal claim with the Fair Work Commission (www.fwc.gov.au).

Suggested way forward

On the information you have provided, it does not appear that your husband’s employer has acted unlawfully. However, you may benefit from speaking to an employment lawyer who can fully assess your husband’s situation and advise him of his legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.