The broad nature of adverse action provisions of the Fair Work Act 2009 ('FWA') have recently been highlighted by the Federal Court in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education concerning employees who engage in industrial activities.

What is adverse action?

The adverse action and general protections provisions under Part 3-1 of the FWA, commenced on 1 July 2009 and were met with some controversy when introduced.

Part 3-1 contains various provisions about:

  • Workplace rights that employers and employees have
  • Freedom of association
  • Discriminatory conduct
  • Industrial activities.

Part of the provisions deals with protections for industrial activities including the ability to be or not to be a member of an industrial association and to take part in the activities of that industrial association.

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education

In one of the first judgements on adverse action, a majority of the Full Bench of the Federal Court found that Bendigo Regional Institute of Technical and Further Education (TAFE) breached the adverse action provisions of the FWA when it disciplined the teacher after he sent an email to the union members at the campus with serious allegations about certain members of staff.

This case is significant because of the fact that TAFE believed that all it was doing was disciplining a member of staff based on actions that it believed brought it into disrepute and distressed members of staff. The Full Bench of the Federal Court however found that the actions were taken because Mr Barclay had engaged in an industrial activity.

TAFE asserted that it disciplined Mr Barclay because:

  • The email was sent to the members of the AEU without first having brought to the attention of senior management the allegations outlined in the email
  • The terms of the email caused distress to members of the staff, particularly those involved in the audit process, and to bring the TAFE reputation into question
  • ÌTAFE was concerned that Mr Barclay would engage in conduct of a similar kind in the future.

At first instance Tracey J decided that action had been taken against an employee but found that the actions were not taken because of a prohibited reason (i.e. the action was not taken merely because of his membership of an industrial association or because of his industrial activities).

However, the majority of the Full Bench of the Federal Court (Justices Gray and Bromberg) found that in searching for what actuated the conduct of the person, the Court must take into account the objective connection between the decision the person is making and the attribute or activity in question rather than the employer's subjective intention.

The majority held that the sending of the email, and the expression of the issue as it was, were part of the teacher's exercise of his functions as a union officer. They were also central to his engagement in industrial activity, as was his insistence on maintaining the confidentiality of the members who approached him.

The fact that the TAFE CEO chose to characterise the conduct of Mr Barclay as the conduct of an employee, not a union officer, does not impact on the ability of the Court to determine otherwise.

Further, the majority said that in adverse action cases there was no need to examine whether a person not engaged in industrial activities would be treated differently.

Lander J dissented, adopting a more narrow approach in his determination of the decision-maker's reasons for acting. In his Honour's view, the central consideration should be the subjective intention of the person taking the alleged adverse action, determined with consideration to the surrounding circumstances and facts.

Lander J agreed with the primary judge's reasoning and conclusion.

This means that for the moment two judges of the Federal Court have adopted a broad approach to interpreting employer actions, while two judges have adopted a more narrow approach.


The case raises serious questions for employers in considering how to manage employees who may be associated with a union or engaged in industrial activities and also gives some insight into how the Court might approach adverse cases in the future.

It remains to be seen which approach will be favoured by the Federal Court going forward (either the broad objective approach or narrow subjective approach).

The Full Bench findings have the potential to significantly change the approach of the courts in determining the reasons for any alleged adverse action.

It is important to note that this is one of the first decisions of the Full Court on these legislative provisions. If the approach outlined is followed in the future, employers will find it more difficult to defend adverse action claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.