The broad nature of adverse action provisions of the Fair
Work Act 2009 ('FWA') have recently been highlighted
by the Federal Court in Barclay v The Board of Bendigo Regional
Institute of Technical and Further Education concerning
employees who engage in industrial activities.
What is adverse action?
The adverse action and general protections provisions under Part
3-1 of the FWA, commenced on 1 July 2009 and were met with some
controversy when introduced.
Part 3-1 contains various provisions about:
Workplace rights that employers and employees have
Freedom of association
Part of the provisions deals with protections for industrial
activities including the ability to be or not to be a member of an
industrial association and to take part in the activities of that
Barclay v The Board of Bendigo Regional Institute of
Technical and Further Education
In one of the first judgements on adverse action, a majority of
the Full Bench of the Federal Court found that Bendigo Regional
Institute of Technical and Further Education (TAFE) breached the
adverse action provisions of the FWA when it disciplined the
teacher after he sent an email to the union members at the campus
with serious allegations about certain members of staff.
This case is significant because of the fact that TAFE believed
that all it was doing was disciplining a member of staff based on
actions that it believed brought it into disrepute and distressed
members of staff. The Full Bench of the Federal Court however found
that the actions were taken because Mr Barclay had engaged in an
TAFE asserted that it disciplined Mr Barclay because:
The email was sent to the members of the AEU without first
having brought to the attention of senior management the
allegations outlined in the email
The terms of the email caused distress to members of the staff,
particularly those involved in the audit process, and to bring the
TAFE reputation into question
ĚTAFE was concerned that Mr Barclay would engage in
conduct of a similar kind in the future.
At first instance Tracey J decided that action had been taken
against an employee but found that the actions were not taken
because of a prohibited reason (i.e. the action was not taken
merely because of his membership of an industrial association or
because of his industrial activities).
However, the majority of the Full Bench of the Federal Court
(Justices Gray and Bromberg) found that in searching for what
actuated the conduct of the person, the Court must take into
account the objective connection between the decision the person is
making and the attribute or activity in question rather than the
employer's subjective intention.
The majority held that the sending of the email, and the
expression of the issue as it was, were part of the teacher's
exercise of his functions as a union officer. They were also
central to his engagement in industrial activity, as was his
insistence on maintaining the confidentiality of the members who
The fact that the TAFE CEO chose to characterise the conduct of
Mr Barclay as the conduct of an employee, not a union officer, does
not impact on the ability of the Court to determine otherwise.
Further, the majority said that in adverse action cases there
was no need to examine whether a person not engaged in industrial
activities would be treated differently.
Lander J dissented, adopting a more narrow approach in his
determination of the decision-maker's reasons for acting. In
his Honour's view, the central consideration should be the
subjective intention of the person taking the alleged adverse
action, determined with consideration to the surrounding
circumstances and facts.
Lander J agreed with the primary judge's reasoning and
This means that for the moment two judges of the Federal Court
have adopted a broad approach to interpreting employer actions,
while two judges have adopted a more narrow approach.
The case raises serious questions for employers in considering
how to manage employees who may be associated with a union or
engaged in industrial activities and also gives some insight into
how the Court might approach adverse cases in the future.
It remains to be seen which approach will be favoured by the
Federal Court going forward (either the broad objective approach or
narrow subjective approach).
The Full Bench findings have the potential to significantly
change the approach of the courts in determining the reasons for
any alleged adverse action.
It is important to note that this is one of the first decisions
of the Full Court on these legislative provisions. If the approach
outlined is followed in the future, employers will find it more
difficult to defend adverse action claims.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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