The decision of the majority of the Full Federal Court
in Barclay v The Board of Bendigo Regional Institute of
Technical and Further Education  FCAFC 14 raised more
than a few eyebrows.
At issue: the test to be applied in determining whether the
alleged adverse action in a general protections claim under the
Fair Work Act 2009 (Cth) (Act) was "because" of
a prohibited reason.
The case involved the decision by the CEO of BRIT to initiate
disciplinary action against an employee. At the time, BRIT was
going through an audit which had the potential to impact on funding
arrangements. Mr Barclay sent an email to all union members in
which he suggested that fraudulent material was being prepared by
officers of BRIT in relation to the audit, and reminded members not
to engage in fraudulent activity.
The CEO got wind of the email and immediately suspended Mr
Barclay to investigate. The CEO said, and the primary judge
accepted, that the reason that the CEO took the action was because
Mr Barclay failed to bring a serious allegation to the attention of
management, that Mr Barclay had cast aspersions and innuendo in a
widely circulated email that had the potential to bring BRIT into
disrepute, and that Mr Barclay's conduct – on the
face of it – amounted to a breach of BRIT's Code of
Mr Barclay wasn't happy, so he went to chat to his Union,
the AEU. It just so happened that at the time that Mr Barclay sent
the email, he signed off "President, BRIT AEU
Sub-Branch". Mr Barclay and the Union alleged that the
"real reason" that the CEO took disciplinary action was
"because" Mr Barclay was to engaging in industrial
activity. Consequently, Mr Barclay filed a general protections
claim under the Act alleging that the CEO had taken adverse action
for a prohibited reason.
The majority of the Full Court essentially found that because Mr
Barclay was arguably acting in his capacity of a union rep at the
time of sending the email, it could not be said that the reason for
action by the CEO was "dissociated from" his industrial
activity. The finding appeared to cast a protective cloak over
union official activities.
In contrast, Lander J (in minority) stated "It is not
simply enough ... that a union official can make out a
contravention by simply establishing that adverse action was taken
whilst the union official was engaged in industrial activity. That
is not enough to establish the connection. The contravention is
only established if in fact that is the reason for the taking of
adverse action". Um, makes perfect sense to me.
And in unanimously overturning the decision on appeal, the High
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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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