In a decision that will be welcomed by many employers, the High Court has today upheld the appeal in the adverse action matter of Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Anor. It held that there was no scope for the Full Court to make findings regarding the 'unconscious' state of mind of the employer once it had been established by the primary judge that adverse action was not taken by the employer because the employee was a union delegate.

The reason for an employer's decision is not determined by an objective or subjective test. Rather, it is necessary to look at the 'real reason' for the taking of the adverse action.

The Fair Work Act 2009 (Cth) provides that a person must not take adverse action against another person because of a workplace right held by that person. A Full Bench of the Federal Court had taken the view in Barclay that in determining whether a connection between adverse action and a workplace right existed, it was necessary to have regard to what actuated (whether consciously or subconsciously) the conduct of the person taking the adverse action, not what the person thought they were actuated by.

Our earlier discussions and further background on this matter may be viewed here and here. A link to the decision is here.

DLA Piper Australia will provide a full analysis of the High Court's reasoning over the coming days. Businesses concerned about the implications of the High Court decision in Barclay are invited to contact our Australian Workplace Relations, Employment & Safety team to discuss the decision further.

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