In a decision that will be welcomed by many employers, the High
Court has today upheld the appeal in the adverse action matter of
Board of Bendigo Regional Institute of Technical and Further
Education v Barclay and Anor. It held that there was no scope
for the Full Court to make findings regarding the
'unconscious' state of mind of the employer once it had
been established by the primary judge that adverse action was not
taken by the employer because the employee was a union
The reason for an employer's decision is not determined by
an objective or subjective test. Rather, it is necessary to look at
the 'real reason' for the taking of the adverse action.
The Fair Work Act 2009 (Cth) provides that a person
must not take adverse action against another person because of a
workplace right held by that person. A Full Bench of the Federal
Court had taken the view in Barclay that in determining whether a
connection between adverse action and a workplace right existed, it
was necessary to have regard to what actuated (whether consciously
or subconsciously) the conduct of the person taking the adverse
action, not what the person thought they were actuated by.
Our earlier discussions and further background on this matter
may be viewed
here. A link to the decision is
DLA Piper Australia will provide a full analysis of the High
Court's reasoning over the coming days. Businesses concerned
about the implications of the High Court decision in Barclay are
invited to contact our Australian Workplace Relations, Employment
& Safety team to discuss the decision further.
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
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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