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

FEDERAL COURT OF AUSTRALIA

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

Appeal from: Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284

Parties: GREGORY PAUL BARCLAY and AUSTRALIAN EDUCATION UNION v THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

File number: VID 267 of 2010

Judges: GRAY, LANDER & BROMBERG JJ

Date of judgment: 9 February 2011

Catchwords: INDUSTRIAL LAW – protection of union officer – whether the state of mind or subjective intention of a person taking adverse action is decisive of whether the action was taken "because" of the other person being an officer or having engaged in industrial activity – whether a distinction is to be drawn between the cause of conduct and the reason for conduct – whether protection of "officer" or "member" extends to activities carried out as incident of holding office or membership –whether officer communicating with members in a manner critical of employer part of function of officer – whether industrial activity – whether appeal court allowing appeal should itself determine penalties and other orders

Legislation: Conciliation and Arbitration Act 1904 (Cth) s 9(1) Disability Discrimination Act 1992 (Cth) s 5(1) Fair Work Act 2009 (Cth) ss 3(a), 3(e), 12, 336, 336(b), 340, 340(1), 340(1)(a), 340(1)(a)(ii), 341, 341(1)(a), 341(1)(b), 341(2)(j), 342, 342(1), 342(2)(a), 344, 346, 346(a), 346(b), 347, 347(a), 347(b)(ii), 347(b)(iii), 347(b)(v), 360, 361, 361(1), 364, 545(2)(b), 546(1), 546(3), 547, 570(1), 570(2) Fair Work (Registered Organisations) Act 2009 (Cth) Workplace Relations Act 1996 (Cth) International Covenant on Economic, Social and Cultural Rights, Opened for signature 19 December 1966, 993 UNTS 3 International Covenant on Civil and Political Rights, Opened for signature 19 December 1966, 999 UNTS 171 International Labour Organisation Convention (No 87) concerning Freedom of Association and Protection of the Rights to Organise, Opened for signature 9 July 1948, 68 UNTS 17 Universal Declaration of Human Rights G/A Res. 217A (III) UN. Doc. A/810 (10 December 1948)