Last Thursday 29 March 2012, the High Court heard the first High Court test of the adverse action provisions in the Fair Work Act 2009 (Cth) (FW Act).

The application by the Bendigo Institute of TAFE seeks to overturn a Federal Court full bench ruling that the TAFE had taken 'adverse action' against an employee (who was also a union delegate) when it suspended him from duties after an incident involving an email sent by the employee to staff. The court held that the TAFE had taken the action against the employee for acting in his capacity as a union representative, which was in breach of the FW Act.

The Federal Court majority decision has given the adverse action provisions in the FW Act a far wider application than many employers may have anticipated. It has had the practical effect of giving immunity to employees involved in union activity, making it nearly impossible for employers to interfere with action taken by their staff at work in their capacity as union members or delegates.

To see our earlier summary of the facts of the decision of the full bench of the Federal Court, including the relevant sections of the FW Act regarding 'adverse action', see our related article.

Key issue to determine

In general terms, the key issue to be determined by the High Court is:

Did the majority of the Federal Court make an error when it found that the decision maker (in this case, the CEO of the TAFE) took adverse action against the employee based on his union activity, despite the fact that the CEO gave uncontested evidence at trial that she decided to discipline the employee for an innocent reason (eg not because he was a union official but because of his conduct)?

In the TAFE's submission, the answer to that question is a resounding 'yes'.

The TAFE argued that if an employer proves (by giving evidence) that its actions were lawful and it was not motivated by the fact of the employee's union status, then that meets the legal test.

However the majority of the Federal Court (2-1) decided that if a court accepts that the decision maker took action (potential disciplinary steps) without consciously considering the employees' union status (as the primary judge did conclude), that the court could look further at the surrounding circumstances (ie the fact that the employee was a union official) and conclude that subconsciously the decision maker did take that fact into account.

The early views of the High Court

In last Thursday's hearing, the High Court appeared to favour the TAFE's submissions, although it reserved its decision. According to Justice Crennan, detailed evidence as to the state of mind of the employer "seems to be treated [by the majority of the Federal Court] as not relevant if the circumstances that an employee is an officer engaging in a particular activity exists".

The High Court appeared to challenge the propositions put forward on behalf of the employee and the Australian Education Union (AEU), who of course argued that the decision of the majority of the Federal Court was correct. Justice Crennan queried their argument, which gives a "union member an advantage over the non-union member who sent an email containing allegations of fraudulent conduct". We take this to mean that the High Court noted that the respondents' arguments had the effect of giving union members or delegates far greater protection than those employees who do not carry that status.

The Minister for Tertiary Education, Skills, Jobs and Workplace Relations was given leave to intervene in the appeal, in support of the employee and the AEU.

Watch this space...

The decision of the High Court is highly anticipated and is expected to be handed down by the middle of the year.

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