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In brief - High Court to hear appeal in Barclay v Bendigo TAFE

The High Court of Australia will soon hear an appeal from the full bench of the Federal Court in a case involving an employee’s entitlement to engage in industrial action in the workplace, Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 (9 February 2011).

Industrial activity protected under the Fair Work Act

Section 340 and 346 of the Fair Work Act (2009) (Cth) provide that a person cannot take adverse action against another individual because they are either engaged in industrial activity or are exercising a workplace right.

The reasoning behind this is that employees should be able to join unions and engage in lawful industrial activities freely, without the risk of being disadvantaged by their employers or having adverse action taken against them as a result.

Email sent by union official leads to suspension of employment

The plaintiff, Mr Barclay, was employed in the educational sector, as a senior teacher with the Bendigo Regional Institute of Technical and Further Education (BRIT). He was also an official of the Australian Education Union.

On 29 January 2010, Mr Barclay forwarded an email to all union members employed by the TAFE. The email made reference to an audit scheduled to take place at the TAFE campus. The email stated: "It has been reported by several members that they have witnessed or been asked to be part of producing false and fraudulent documents for the audit".

Mr Barclay advised all recipients to contact the "AEU and seek their support and advice". He signed off on the email, which also included a union privacy clause, with "Greg Barclay, President, BRIT AEU Sub-Branch".

On 2 February 2010, Mr Barclay was questioned by the CEO of the TAFE, Dr Louise Harvey. He was asked to "show cause" as to why he should not face disciplinary proceedings for his failure to report the alleged fraudulent conduct to management at Bendigo TAFE. Mr Barclay declined to provide details of the fraud when questioned and did not provide the names of his informants, except to say that they were fellow union members.

Dr Harvey took the view that Mr Barclay should have informed management of the misconduct and that his failure to do so amounted to a breach of BRIT’s regulating Code of Conduct. Mr Barclay was suspended from his employment on full pay and told to refrain from entering BRIT’s premises or using its internet system. An inquiry was commenced into the allegations of fraud and Mr Barclay’s suspension was subsequently lifted on 12 February 2011.

Union claim of adverse action

Mr Barclay and the AEU commenced proceedings against Bendigo TAFE, alleging that it had breached section 340 and 346 of the Fair Work Act.

In particular, Mr Barclay argued that Bendigo TAFE had taken adverse action against him by suspending his employment, suspending his online work account, directing him not to attend the campuses of the TAFE and requiring him to show cause as to why disciplinary action should not be taken against him.

Mr Barclay argued that the reasons for this adverse action were:

  • he was a AEU union officer
  • he had engaged in industrial activity by advancing the interests of AEU and by encouraging or participating in lawful industrial activity
  • he had exercised a workplace right by providing advice and representation to other union members
  • he had exercised an additional workplace right by participating in the settlement of a union dispute or grievance

Mr Barclay further argued that the use of the word "because" in section 340 and 346 of the Act meant that Dr Harvey’s individual reasons for suspending him were irrelevant. Instead, he asserted that the court’s review of the decision to suspend him should be decided based on what a reasonable person would have done in Dr Harvey’s position.

Bendigo TAFE claims adverse action not related to union involvement

Bendigo TAFE acknowledged that it had taken adverse action against Mr Barclay in respect of the first three alleged actions, being the suspensions and direction not to attend work. However, the TAFE contended that the reasons for such actions were not related to Mr Barclay’s union involvement.

Instead, the TAFE argued that Mr Barclay was suspended as a result of his failure to report the allegations of fraudulent conduct to senior management, the use of language in his email which could potentially bring the reputation of Bendigo TAFE into question and the fact that he had been employed in the unit responsible for overseeing the preparation of the audit process.

The TAFE also claimed that if he had remained on campus while the auditors were present, more allegations may have been made which could be detrimental to the TAFE during the audit process. Further, the TAFE argued that the requirement for Mr Barclay to "show cause" was not an adverse action.

Appeal to the full bench of the Federal Court

In February 2011, the full bench of the Federal Court heard an appeal by Mr Barclay. The fundamental question on appeal was whether there was a sufficient link between Bendigo TAFE's decision to take the adverse action and the fact that Mr Barclay was a union officer engaged in industrial activity.

Bendigo TAFE previously acknowledged before a single judge of the Federal Court that adverse action had occurred in respect of three of the four matters alleged by Mr Barclay. On appeal, Mr Barclay did not pursue the argument that the request to "show cause" was also an adverse action.

No dispute was made by Bendigo TAFE in respect of the court’s finding that Mr Barclay had been acting within his capacity as a union official when he raised the fraudulent conduct.

Mr Barclay was found to be representing and advancing the views of the AEU. He had encouraged members to contact AEU and had refused to divulge the identity of the union members who had informed him of the fraud. As a result, Mr Barclay was seen to be engaged in industrial activity when he sent the email.

Although Dr Harvey gave evidence to suggest that she had characterised Mr Barclay’s conduct as that of an employee, the court found that this did not alter the fact that her reasons for suspending Mr Barclay included factors that were linked to his function as an AEU Officer.

Bendigo TAFE found to have contravened s 346 of the Fair Work Act

Ultimately it was determined that Bendigo TAFE had contravened s346 of the Fair Work Act by taking adverse action against Mr Barclay because of his involvement in industrial activity. Their Honours found that in reaching their decision, it was a requirement to consider all of the surrounding circumstances, both objective and subjective.

This includes a review of factors which may be different to what the employer claimed or genuinely believed at the time of their decision to take action. It is, however, this factor of the decision that is the subject of the current appeal to the High Court.

Additionally, the court was required to consider whether there had been a breach of sections 340 of the Act. The TAFE's employees were allowed to seek advice from and be represented by the AEU at all stages of a dispute resolution procedure.

Mr Barclay claimed to be the representative member of the AEU, from which employees could seek advice. He argued that this meant he had been exercising a workplace right. However, no evidence was presented to the court to support the proposition that any AEU member had sought advice or requested representation from Mr Barclay. Therefore it was found that Mr Barclay was not exercising a workplace right and there had been no contravention of section 340 of the Fair Work Act.

Factors to consider in disciplinary proceedings involving union members

This case illustrates the importance of ensuring procedural fairness is provided to all employees. In cases involving an adverse action claim, the following points are useful in considering disciplinary proceedings involving union members:

  • The court is likely to consider why the employee was treated as they were and whether it was because the employee had engaged in industrial activities. In doing so, the court will assess not only the employer’s individual reasons for taking the action, but will also review any objective reasons a third party might consider to be the motivating factor.
  • Prior to taking any action against an employee who is engaged in industrial activities, undertake an assessment of what a third party may think of your reasons for taking the action. As can be seen from this case, the industrial activity need only be one factor in the decision making process.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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