Adverse action under Fair Work Act clarified by Barclay decision

Adverse action under the Fair Work Act has been one of the most high-profile issues in workplace law, and we now have the first major appellate court decision explaining how some of the relevant provisions work, and employers' responsibilities under them.

Although the Full Federal Court's decision in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 is based on the protection given to union members and officers, much of the reasoning will apply to the laws protecting all current and potential employees who exercise workplace rights too.

The decision was a 2/1 majority decision and the reasoning of the joint majority judgment differed significantly from that used by the trial judge and the dissenting judge, and gives the adverse action provisions a wider application, and creates for employers (and other persons) a larger area of potential liability than previously believed.