Last Thursday 29 March 2012, the High Court heard the first High
Court test of the adverse action provisions in the Fair Work
Act 2009 (Cth) (FW Act).
The application by the Bendigo Institute of TAFE seeks to
overturn a Federal Court full bench ruling that the TAFE had taken
'adverse action' against an employee (who was also a union
delegate) when it suspended him from duties after an incident
involving an email sent by the employee to staff. The court held
that the TAFE had taken the action against the employee for acting
in his capacity as a union representative, which was in breach of
the FW Act.
The Federal Court majority decision has given the adverse action
provisions in the FW Act a far wider application than many
employers may have anticipated. It has had the practical effect of
giving immunity to employees involved in union activity, making it
nearly impossible for employers to interfere with action taken by
their staff at work in their capacity as union members or
To see our earlier summary of the facts of the decision of the
full bench of the Federal Court, including the relevant sections of
the FW Act regarding 'adverse action', see our
Key issue to determine
In general terms, the key issue to be determined by the High
Did the majority of the Federal Court make an error when it
found that the decision maker (in this case, the CEO of the TAFE)
took adverse action against the employee based on his union
activity, despite the fact that the CEO gave uncontested evidence
at trial that she decided to discipline the employee for an
innocent reason (eg not because he was a union
official but because of his conduct)?
In the TAFE's submission, the answer to that question is a
The TAFE argued that if an employer proves (by giving evidence)
that its actions were lawful and it was not motivated by the fact
of the employee's union status, then that meets the legal
However the majority of the Federal Court (2-1) decided that if
a court accepts that the decision maker took action (potential
disciplinary steps) without consciously considering the
employees' union status (as the primary judge did conclude),
that the court could look further at the surrounding circumstances
(ie the fact that the employee was a union official) and conclude
that subconsciously the decision maker
did take that fact into account.
The early views of the High Court
In last Thursday's hearing, the High Court appeared to
favour the TAFE's submissions, although it reserved its
decision. According to Justice Crennan, detailed evidence as to the
state of mind of the employer "seems to be treated [by the
majority of the Federal Court] as not relevant if the circumstances
that an employee is an officer engaging in a particular activity
The High Court appeared to challenge the propositions put
forward on behalf of the employee and the Australian Education
Union (AEU), who of course argued that the decision of the majority
of the Federal Court was correct. Justice Crennan queried their
argument, which gives a "union member an advantage over
the non-union member who sent an email containing allegations of
fraudulent conduct". We take this to mean that the High
Court noted that the respondents' arguments had the effect of
giving union members or delegates far greater protection than those
employees who do not carry that status.
The Minister for Tertiary Education, Skills, Jobs and Workplace
Relations was given leave to intervene in the appeal, in support of
the employee and the AEU.
Watch this space...
The decision of the High Court is highly anticipated and is
expected to be handed down by the middle of the year.
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
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further information, please refer to www.dlapiper.com
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