Mr Barclay (‘Employee’) was a union officer of the Australian Education Union (‘AEU’), and an employee of Bendigo TAFE.
Mr Barclay was suspended from duty with full pay; and requested to show cause why he should not be subject to disciplinary action. After suspension both AEU and the Employee applied to the Federal Court for a declaration that Bendigo TAFE had contravened the Fair Work Act 2009 (Cth) (‘FW Act’).by taking adverse action, because (amongst other things) the Employee was an officer of AEU.
Hearing – and first appeal
His Honour Justice Tracey of the Federal Court of Australia heard the trial, and dismissed the Employee’s application. His Honour accepted evidence of the decision maker, a Dr Harvey, for suspending the Employee and concluded they did not include the grounds prohibited by legislation, and amounting to adverse action. His Honour found no contravention of section 346 of the FW Act. Dr Harvey stated that she would have taken the same action (in suspending an employee) in similar circumstances where that employee was not a member nor officer of AEU.
The full court of the Federal Court of Australia (Gray and Bromberg JJ; Lander J dissenting) (‘the Full Court’) heard the first appeal. The Full Court found a contravention of section 346; it set aside the findings of the trial judge and ordered a remitter back to Tracey J for reconsideration. The Full Court found:
- that the real reason for a person’s conduct is not necessarily the reason which the person asserts;
- thus, Dr Harvey could, and did, ‘unconsciously’ have the impermissible reason (namely the Employee’s position as union officer) in mind when she decided to suspend the Employee; and
- evidence or conclusions of ‘objective facts’ are now included in section 346 of the FW Act; the subjective state of mind of a person is less significant. Thus, Dr Harvey failed to establish the ‘real reason’ for her decision, and the court was not bound to only accept or reject her evidence to reach this conclusion.
Appeal – full court of the High Court of Australia
Bendigo TAFE sought and was granted special leave to pursue an appeal in the High Court of Australia. That appeal was heard by French CJ, Gummow, Hayne, Heydon and Crennan JJ.
All five judges (in three judgments) agreed in the outcome, to which I refer below. The High Court decision is a concise exposition, allowing the appeal and effectively reinstating the orders of Tracey J at first instance. Each of the judgments casts doubt on the reasoning of the majority in the Full Court; Heydon J is especially dismissive of this reasoning, and notes parts of the argument which were not pursued in the second appeal.
An overview of the High Court’s decision is:
- where a prohibited reason is the subject matter of the inquiry, then evidence from the decision maker (in this case, Dr Harvey) is paramount;
- their Honours in the High Court endorsed the dicta of then Mason J with whom Stephen and Jacobs agreed, both in Bowling (1976) 51 ALJR 235; 12 ALR 605 and in Pearce  HCA 28; (1917) 23 CLR 199. Section 361 of the FW Act is relevantly identical to provisions in both of the earlier cases;
- neither section 346, nor section 361 (in applying the onus of proof to the employer- appellant) requires a search for the ‘real reason’. Rather, the employer’s subjective reasons given for its decision are to be accepted on evidence, or not. The Full Court’s distinction between ‘conscious’ and ‘unconscious’ reasons is not supported.
Rationale of the decision
Predictably, some commentators on this case (including the current minister for workplace relations) proceed from the view that the High Court has altered the rights of union members and officers. That is not the rationale of Barclay.
Rather, this case is about the construction of the ‘impermissible’ reasons sections of the FW Act in applying section 361 of the FW Act. As is well known, section 361 imposes a burden which an employer, seeking to be relieved of liability, must discharge.
Whilst adverse action cases are circular, due to the poor drafting and open categories of ‘workplace right’ in the FW Act, it is significant that the High Court has firmly located their reasoning in older industrial relations cases. This indicates that the High Court intends that the current legislation be no more broadly construed than its predecessors.