Board of Bendigo Regional Institute of Technical and Further Education v Barclay

• Jurisdiction: Australia Federal only
• Judge: French CJ,Crennan J,Gummow,Hayne JJ,Hayne J
• Judgment Date: 07 September 2012
• Neutral Citation: 2012-0907 HCA C,[2012] HCA 32
• Court: High Court
• Docket Number: M128/2011
• Date: 07 September 2012

[2012] HCA 32

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon and Crennan JJ

M128/2011

The Board Of Bendigo Regional Institute Of Technical And Further Education

Appellant

and

Gregory Paul Barclay & Anor

Respondent

Representation

J L Bourke SC with P M O'Grady for the appellant (instructed by Lander & Rogers Lawyers)

R C Kenzie QC with M A Irving for the first and second respondents (instructed by Holding Redlich)

T M Howe QC with S P Donaghue SC and L E Young intervening on behalf of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (instructed by Australian Government Solicitor)

Fair Work Act 2009 (Cth), ss 342, 346, 360, 361.

Board of Bendigo Regional Institute of Technical and Further Education v Barclay

Industrial law (Cth) — General protections — Adverse action — Section 346 of Fair Work Act 2009 (Cth) prohibits employer from taking adverse action against employee because employee ‘is … an officer or member of an industrial association’ or ‘engages … in industrial activity’ — Section 361 creates presumption that adverse action taken for prohibited reason unless employer proves otherwise — First respondent was employee of appellant and officer of second respondent — Second respondent was industrial association — First respondent engaged in industrial activity — Chief Executive Officer of appellant took adverse action against first respondent — Chief Executive Officer gave evidence at trial that adverse action taken for innocent reasons and not for prohibited reasons — Trial judge accepted that evidence — Whether adverse action taken for prohibited reason.

Words and phrases — ‘because’, ‘substantial and operative factor’.

ORDER

Appeal dismissed with costs.

French CJ and Crennan J. Section 346 of the Fair Work Act 2009 (Cth) (‘the Fair Work Act’) prohibits an employer from taking adverse action against an employee because that employee is an officer or member of an industrial association, or because that employee engages or proposes to engage in particular kinds of industrial activity. Under s 36 of the Fair Work Act, adverse action taken against an employee will be presumed to be action taken for a prohibited reason unless the employer responsible for taking the adverse action proves otherwise. Similar protections have existed in federal industrial relations legislation in Australia since the enactment of the Conciliation and Arbitration Act 1904 (Cth) 1.

2 The issue in the present appeal arises from a decision by the Chief Executive Officer of the Bendigo Regional Institute of Technical and Further Education (‘BRIT’), Dr Louise Harvey, to suspend the first respondent, Mr Greg Barclay, from duty on full pay and to request him to show cause why he should not be subject to disciplinary action. The appellant is the statutory authority responsible for the operation of BRIT. Mr Barclay is an employee of BRIT, and is also the President of the BRIT Sub-Branch of the second respondent, the Australian Education Union (‘the AEU’). The AEU is registered as an industrial association under the Fair Work (Registered Organisations) Act 2009 (Cth).

3 Following Mr Barclay's suspension, the respondents applied to the Federal Court under s 539 of the Fair Work Act for a declaration that BRIT had contravened s 346 by impermissibly taking adverse action against Mr Barclay because, among other things, he was an officer of the AEU, and he had engaged in particular kinds of industrial activity. Orders were also sought for civil penalties 2, compensation 3 and interlocutory relief.

4 In the Federal Court, the primary judge (Tracey J) dismissed the respondents' application 4. His Honour accepted evidence given by Dr Harvey as to her reasons for suspending Mr Barclay, and was satisfied that she had acted for the reasons which she gave and had not acted for any reason prohibited by the

Fair Work Act 5. A majority of the Full Court of the Federal Court (Gray and Bromberg JJ; Lander J dissenting) upheld the respondents' appeal from the primary judge's decision and remitted the matter to the primary judge for further consideration 6. By special leave, the appellant now appeals to this Court to challenge the interpretation, and application, of the relevant provisions favoured by the majority in the Full Court. The Minister for Tertiary Education, Skills, Jobs and Workplace Relations intervened, by leave, in support of the respondents.

5 The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.

6 The respondents argued that the relevant provisions of the Fair Work Act require that such a proceeding should not be resolved in favour of a defendant employer unless the evidence in the proceeding objectively establishes that the employer's reason for taking adverse action was dissociated from any reason prohibited by s 346. For the reasons which follow, the respondents' interpretation of the relevant provisions must be rejected and the appeal upheld.

Factual background

7 The basic facts are not in contest. In January 2010, staff of BRIT were preparing for a re-accreditation audit to be conducted by the Victorian Registration and Qualifications Authority (‘the VRQA’), the statutory authority responsible for the accreditation of providers of vocational education and training in Victoria. BRIT requires accreditation in relation to each of its courses in order to continue to offer those courses and confer relevant qualifications, and to receive funding for that purpose. Auditors from the VRQA were due to attend at BRIT on 16 and 17 February 2010, and staff of BRIT had been preparing documentation for the re-accreditation audit since mid-2009.

8 Mr Barclay's present role as an employee of BRIT is ‘Team Leader — Teaching Excellence’. As part of this role, Mr Barclay is part of a team responsible for ensuring that the courses provided by BRIT are accredited and retain accreditation. Mr Barclay reports to the ‘Manager — Teaching, Learning

and Quality’, Mr Jamie Eckett. Mr Barclay is also the President of the BRIT Sub-Branch of the AEU. The BRIT Sub-Branch of the AEU consists of all AEU members employed by BRIT. The AEU does not reveal the names of its members to BRIT, although some BRIT employees do publicly identify themselves as AEU members. As part of his role as President of the BRIT Sub-Branch, Mr Barclay is responsible for advising, assisting and representing AEU members employed by BRIT to resolve concerns, issues and disputes through both formal and informal avenues.

9 On four separate occasions between late 200and mid-January 2010, members of the AEU employed by BRIT approached Mr Barclay to raise concerns about inaccurate information being included in documentation prepared for the re-accreditation audit. On each occasion, Mr Barclay discussed these concerns with the member outside of his BRIT office. Each of the members indicated to Mr Barclay that they did not want him to take any formal action in relation to their concerns, and did not want him to disclose their name or detailed information about their concerns to BRIT.

10 In early January 2010, Mr Barclay was present during a telephone conversation between Mr Eckett and another BRIT employee which included a discussion of the issue of inaccurate information being included in documentation prepared for the re-accreditation audit. Following this telephone conversation, Mr Barclay and Mr Eckett continued to discuss this issue, and examples of such inaccurate information. At about the same time, in the course of his duties as Team Leader, Mr Barclay became aware of other inaccurate information contained in documentation prepared for the re-accreditation audit.

11 On 29 January 2010, in his capacity as President of the BRIT Sub-Branch of the AEU, Mr Barclay sent the following email to all AEU members employed by BRIT:

‘ Subject: AEU — A note of caution

Hi all,

The flurry of activity across the Institute to prepare for the upcoming reaccreditation audit is getting to the pointy end with the material having been sent off for the auditors to look through prior to the visit in February.

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.

It is stating the obvious but, DO NOT AGREE TO BE PART OF ANY ATTEMPT TO CREATE FALSE/ FRADULENT [sic] DOCUMENTATION OR PARTICIPATE IN THESE TYPES OF ACTIVITIES. If you have felt pressured to participate in this kind of activity please (as have several members to date) contact the AEU and seek their support and advice.

Greg Barclay

President

BRIT AEU Sub-Branch’

12 Copies of this email were seen by senior managers at BRIT, including Mr Eckett. On 1 February 2010, Mr Eckett forwarded a copy of the email to Dr Harvey, accompanied by comments from other managers to the effect that the email had the potential to cause serious damage to BRIT's reputation. Mr Eckett told Dr Harvey that he had discussed the email with Mr Barclay earlier on 1 February 2010, and that Mr Barclay had declined to provide him with the names of the members referred to in the email as having witnessed or been asked to be part of producing false and fraudulent documents. Dr Harvey considered the email and the comments overnight and formed the view that Mr Barclay had contravened certain clauses of the Code of Conduct for Victorian Public Sector Employees.

13 On 2 February 2010, Dr Harvey invited Mr Barclay to meet with her. Mr Barclay was accompanied at this meeting by an AEU representative. At the meeting, Dr Harvey handed...