Adverse Action – Full Bench Decision

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14

The Barclay decision was one of the first general protections decisions handed down by the Federal Court following the introduction of the Fair Work Act 2009 (Act). The Full Bench of the Federal Court last week overturned the Federal Court decision, significantly extending the protection afforded to employees, particularly those who are union officials.

Summary

The case stands for two propositions:

• Whether action is taken 'because' of a proscribed ground (such as industrial activity by a union official) depends on the 'objective' reasons for the action and not only the subjective intentions of the employer;