The High Court of Australia unanimously determined that the
first instance decision of Justice Tracey in the Federal Court of
Australia was the correct one, thereby overturning the decision of
the Full Bench of the Federal Court.
Mr Barclay was an Australia Educational Union (AEU)
representative in his workplace, Bendigo Regional Institute of
Technical and Further Education (Bendigo TAFE). Several AEU members
had expressed concerns about false and fraudulent documents being
prepared at the Bendigo TAFE. These members informed Mr Barclay
they did not wish any further action to be taken or their names
After a number of different such complaints made by employees to
Mr Barclay, he sent an email to AEU members at Bendigo Tafe
advising that some members had made such claims and that if an
employee was feeling pressured they could contact the AEU for
support and advice. This email came to the attention of Management
of Bendigo TAFE.
Bendigo TAFE attended a meeting with the CEO of Bendigo TAFE, Dr
Harvey, at which he was given a letter asking him to show cause why
he should not be subject to disciplinary action for serious
misconduct. Bendigo TAFE then suspended Mr Barclay on full pay on
the basis he had breached the code of conduct for Victorian Public
Mr Barclay brought an action claiming he had been the subject of
adverse action (the suspension) under the Fair Work
Act 2009 (Cth) (the Act) for a prohibited reason. A prohibited
reason included because an employee is an official of an industrial
association or engages in industrial activity.
Under s 361 of the Act Bendigo TAFE bore the burden of proving
they had not subjected Mr Barclay to an adverse action for a
The HCA held that Bendigo TAFE had not taken adverse action for
a prohibited reason on the basis the suspension was not because of
the "industrial activity" but because Bendigo TAFE was
concerned that Mr Barclay had not reported concerns about the
fraudulent practices directly to management.
Justices French and Crennan noted that the burden for an
employee to prove that adverse action was not for a prohibited
action was not made heavier because the employee is an officer of
an industrial association. Furthermore the fact Mr Barclay was an
officer of an industrial association did not mean that necessarily
had something to do with the adverse action taken against him.
In their words Bendigo TAFE,
"discharged the burden cast upon it to show that the
reason for the adverse action was not a prohibited reason, and that
Mr Barclay's union position and activities were not operative
factors in him being required to show cause."
It was relevant that Dr Harvey had given evidence which was
accepted as convincing and coherent. Dr Harvey's evidence was
that she would have made the same decision whether Mr Barclay was
an officer of an industrial association or not.
It was also significant that Mr Barclay did not challenge the
factual findings of the first instance decision of Justice Tracey
in accepting Dr Harvey's evidence, and finding that the Bendigo
TAFE had not taken adverse action against Mr Barclay for a
The Full Court of the Federal Court of Australia had drawn a
distinction between conscious and unconscious reasons, believing
that the real reason for some conduct could be unconscious. This
approach was dismissed by the High Court, and labelled by Justice
Heydon as "indefensible". He stated
"There is no evidence whatever that supports the
proposition that Dr Harvey "unconsciously" employed
prohibited reasoning in taking action against Mr
The confidences entrusted to Mr Barclay by his fellow employees,
indicated conduct that breached the employer's standards and Mr
Barclay in not informing management of the conduct may have
breached the code of conduct for the Victorian Public Sector
Employees. Bendigo TAFE was successful in arguing that this and not
his AEU membership or industrial activity was the reason for his
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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