The decision of the majority of the Full Federal Court in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 raised more than a few eyebrows.

At issue: the test to be applied in determining whether the alleged adverse action in a general protections claim under the Fair Work Act 2009 (Cth) (Act) was "because" of a prohibited reason.

The case involved the decision by the CEO of BRIT to initiate disciplinary action against an employee. At the time, BRIT was going through an audit which had the potential to impact on funding arrangements. Mr Barclay sent an email to all union members in which he suggested that fraudulent material was being prepared by officers of BRIT in relation to the audit, and reminded members not to engage in fraudulent activity.

The CEO got wind of the email and immediately suspended Mr Barclay to investigate. The CEO said, and the primary judge accepted, that the reason that the CEO took the action was because Mr Barclay failed to bring a serious allegation to the attention of management, that Mr Barclay had cast aspersions and innuendo in a widely circulated email that had the potential to bring BRIT into disrepute, and that Mr Barclay's conduct – on the face of it – amounted to a breach of BRIT's Code of Conduct.

Mr Barclay wasn't happy, so he went to chat to his Union, the AEU. It just so happened that at the time that Mr Barclay sent the email, he signed off "President, BRIT AEU Sub-Branch". Mr Barclay and the Union alleged that the "real reason" that the CEO took disciplinary action was "because" Mr Barclay was to engaging in industrial activity. Consequently, Mr Barclay filed a general protections claim under the Act alleging that the CEO had taken adverse action for a prohibited reason.

The majority of the Full Court essentially found that because Mr Barclay was arguably acting in his capacity of a union rep at the time of sending the email, it could not be said that the reason for action by the CEO was "dissociated from" his industrial activity. The finding appeared to cast a protective cloak over union official activities.

In contrast, Lander J (in minority) stated "It is not simply enough ... that a union official can make out a contravention by simply establishing that adverse action was taken whilst the union official was engaged in industrial activity. That is not enough to establish the connection. The contravention is only established if in fact that is the reason for the taking of adverse action". Um, makes perfect sense to me.

And in unanimously overturning the decision on appeal, the High Court agrees.

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