Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

HIGH COURT OF AUSTRALIA

FRENCH CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION APPELLANT

AND

GREGORY PAUL BARCLAY & ANOR RESPONDENTS

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 7 September 2012 M128/2011 ORDER

1. Appeal allowed.

2. Orders 1, 2 and 3 of the orders of the Full Court of the Federal Court of Australia, made on 9 February 2011, be set aside, and in their place, order that the appeal to that Court be dismissed.

3. Any question of the costs of the appeal be dealt with by consent order or by this Court on the papers as indicated in the reasons for judgment.

On appeal from the Federal Court of Australia

Representation

J L Bourke SC with P M O'Grady for the appellant (instructed by Lander & Rogers Lawyers)

R C Kenzie QC with M A Irving for the first and second respondents (instructed by Holding Redlich)

T M Howe QC with S P Donaghue SC and L E Young intervening on behalf of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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

Industrial law (Cth) – General protections – Adverse action – Section 346 of Fair Work Act 2009 (Cth) prohibits employer from taking adverse action against employee because employee "is ... an officer or member of an industrial association" or "engages ... in industrial activity" – Section 361 creates presumption that adverse action taken for prohibited reason unless employer proves otherwise – First respondent was employee of appellant and officer of second respondent – Second respondent was industrial association – First respondent engaged in industrial activity – Chief Executive Officer of appellant took adverse action against first respondent – Chief Executive Officer gave evidence at trial that adverse action taken for innocent reasons and not for prohibited reasons – Trial judge accepted that evidence – Whether adverse action taken for prohibited reason.