HCA: Barclay’s adverse action overturned

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012)

In a much awaited decision, I refer you to the High Court summary wherein the court found the evidence of Dr Harvey, which had not been challenged, did not establish an adverse action for a prohibited reason.

Chief Justice French and Justice Crennan:

… [I]t is erroneous to treat the onus imposed on an employer by s 361 [of the Fair Work Act 2009 (Cth)] as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association. …

Central to the respondents’ argument on this appeal was the contrary and incorrect view that Mr Barclay’s status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that Mr Barclay’s union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action.

If accepted, such a position would destroy the balance between employers and employees central to the operation of s 361 … .

… [I]t is a related error to treat an employee’s union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. … The onus of proving that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.

Justice Heydon:

‘Nothing in the Act expressly suggests that the courts are to search for “unconscious” elements in the impugned reasoning of persons in Dr Harvey’s position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind?’

Brisbane Barrister – David Cormack

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