In a decision that will be welcomed by many employers, the High
Court has today upheld the appeal in the adverse action matter of
Board of Bendigo Regional Institute of Technical and Further
Education v Barclay and Anor. It held that there was no scope
for the Full Court to make findings regarding the
'unconscious' state of mind of the employer once it had
been established by the primary judge that adverse action was not
taken by the employer because the employee was a union
delegate.
The reason for an employer's decision is not determined by
an objective or subjective test. Rather, it is necessary to look at
the 'real reason' for the taking of the adverse action.
The Fair Work Act 2009 (Cth) provides that a person
must not take adverse action against another person because of a
workplace right held by that person. A Full Bench of the Federal
Court had taken the view in Barclay that in determining whether a
connection between adverse action and a workplace right
