Most Read Contributor in Australia, September 2016
In a judgment handed down today, the High Court has clarified
the operation of the General Protections provisions of the Fair
Work Act. Prior to today's decision, there had been
extensive debate about whether a subjective or objective test was
to be applied to determine the reason why adverse action was taken
by an employer against an employee.
In The Board of Bendigo Regional Institute of TAFE v
Barclay  HCA 32, the Court held that:
"...the central question remains "why was the
adverse action taken?. This question is one of fact, which must be
answered in the light of all the facts established in the
proceeding. Generally, it will be extremely difficult to displace
the statutory presumption if no direct testimony is given by the
decision-maker acting on behalf of the employer. Direct evidence of
the reason why a decision-maker took adverse action, which may
include positive evidence that the action was not taken for a
prohibited reason, may be unreliable because of other contradictory
evidence given by the decision-maker or because other objective
facts are proven which contradict the decision-maker's
evidence. However, direct testimony from the decision-maker which
is accepted as reliable is capable of discharging the burden upon
an employer even though an employee may be an officer or member of
an industrial association and engage in industrial
"In this case the primary judge adopted the correct
approach to the relevant provisions. Dr Harvey gave evidence of her
reason for taking adverse action against Mr Barclay and also gave
positive evidence that this was not for a prohibited reason and
that she would have taken the same action against a person
circulating a similar email who was not an officer of the AEU. That
evidence was accepted by the primary judge and his findings in that
regard were not challenged before the Full Court. The appellant
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. The appeal must be
upheld and consequential orders made."
A majority of the Full Federal Court (consisting of Gray and
Bromberg JJ) had previously found differently. They held that the
taking of adverse action must be shown to be objectively
"dissociated from the circumstances" that the aggrieved
person has or had in relation to a workplace right, protected
attribute or industrial activity.
In its June 2012 report to the Federal Government, the Fair Work
Act Review Panel recommended that, if the High Court did not
overturn the Full Federal Court decision in Barclay, the Government
should amend the Fair Work Act to give employers access to a
complete defence if it is established that the decision-maker had a
belief about the lawfulness of their action that was honestly held
and reasonable considering all of the circumstances.
The High Court decision has removed the need for this amendment.
Employers giving testimony of such a belief about the lawfulness of
the action will still need to convince the judge, on a balance of
probabilities, that in all of the circumstances the belief was
honestly and sincerely held. However once the employer discharges
this evidential onus, a claimant will find it extremely difficult
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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.
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