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

The matter before the court was an appeal brought by Greg Barclay against the Board of Bendigo Regional Institute of Technical and Further Education. The primary dispute concerned whether Barclay's dismissal was lawful under the Fair Work Act 2009 (Cth). Specifically, the case examined whether the protection afforded to union officers under the Act extended to activities carried out as an incident of holding office, and if communicating with members in a manner critical of the employer constituted such industrial activity. The court also needed to determine whether the state of mind or subjective intention of a person taking adverse action was decisive of whether the action was taken "because of" the other person being an officer or engaging in industrial activity, and whether there was a distinction between the cause of conduct and the reason for conduct.

The court found that the protection of "officer" or "member" in the Act extends to activities carried out as an incident of holding office or membership. The court emphasised that the purpose of the Act is to protect the right to engage in industrial activities, and that the holding of membership or office is regarded by the Act as an engagement in industrial activity. The court further held that while the state of mind or subjective intention of a person taking adverse action is not necessarily decisive, it is relevant in determining whether the action was taken "because of" the other person being an officer or engaging in industrial activity. The court also found that there is a distinction between the cause of conduct and the reason for conduct, and that the latter is more relevant in the context of the Act.

The court allowed the appeal and set aside the order dismissing the application. The matter was remitted to the primary judge for the making of further orders in accordance with the reasons for judgment of the Full Court. The court made no order as to the costs of the appeal.