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

The High Court of Australia heard an appeal concerning adverse action taken by the Board of Bendigo Regional Institute of Technical and Further Education ("BRIT") against its employee, Mr Barclay, who was also the President of the BRIT Sub-Branch of the Australian Education Union ("AEU"). Mr Barclay had sent an email warning AEU members about the creation of false documentation for an upcoming audit. BRIT subsequently suspended Mr Barclay, excluded him from the premises, and commenced disciplinary proceedings. Mr Barclay and the AEU alleged that these actions constituted adverse action under s 346 of the *Fair Work Act 2009* (Cth), which prohibits employers from taking adverse action against an employee because they are an officer or member of an industrial association or engage in industrial activity.

The central legal issue before the High Court was whether the adverse action taken against Mr Barclay was taken "because" of his industrial association membership or activities, as prohibited by s 346 of the *Fair Work Act*. Section 361 of the Act creates a presumption that adverse action is taken for a prohibited reason unless the employer proves otherwise. The respondents argued that the employer must objectively establish that the reason for the adverse action was dissociated from any prohibited reason.

The High Court reasoned that the primary judge had correctly applied the relevant provisions of the *Fair Work Act*. The Court found that the Chief Executive Officer of BRIT, Dr Harvey, had provided evidence of her reasons for taking adverse action against Mr Barclay, and crucially, had given positive evidence that these reasons were not prohibited by s 346. Dr Harvey also testified that she would have taken the same action against any employee circulating a similar email, irrespective of their union affiliation. The primary judge accepted this evidence, and these findings were not challenged on appeal. Consequently, the High Court concluded that BRIT had discharged the burden of proof under s 361, demonstrating that Mr Barclay's union position and activities were not operative factors in the decision to require him to show cause. The appeal was allowed, and the orders of the Full Court of the Federal Court of Australia were set aside, with the appeal to that Court being dismissed.