High Court ruling means union reps no longer a “protected species”

Industry groups have welcomed a unanimous ruling by the High Court which restores legal rights when employers are sued for allegedly discriminating against unionised employees.

In the “Barclay case” the High Court allowed an appeal by the Bendigo Regional Institute of TAFE, overturning a full bench Federal Court ruling which gave union delegates additional legal protections from “adverse actions”.

The court found credible countering evidence from employers about the actual purpose of their conduct was a sufficient legal defence, without having to read the mind of the disgruntled employee.

The finding was welcomed by industry groups the Australian Chamber of Commerce and Industry and the Australian Industry Group who warned if the High Court had not ruled this way, an almost impenetrable shield against legitimate disciplinary action against unionists would have existed.

Daniel Mammone, the ACCI’s director of workplace policy, told SmartCompany what appeared to be one law for unionists and another for non-unionists had been narrowly averted – but only because of High Court intervention.

“We were surprised when the government intervened in terms of the unions, but this seems to be back to the status quo now,” says Mammone.

“Of course, we welcome the decision because it would have been impossible for an employer to disprove that it took legitimate action.”

Innes Willox, chief executive of the Australian Industry Group, also welcomed the High Court’s ruling.

“The Full Federal Court’s decision created widespread concern amongst employers that union delegates may have become a ‘protected species’,” he said.

“The High Court has rightly confirmed that union delegates engaging in misconduct can be disciplined like any other employees.”

Willox said the High Court also confirmed that what is important in determining whether the general protections in the Fair Work Act have been breached is the reason why the person decided to take the disciplinary action and not their ‘unconscious state of mind’.

“While the decision makes the adverse action provisions in the Fair Work Act more workable, there are many amendments to the general protections which are needed, as identified in the Australian Industry Group’s submissions to the Fair Work Act Review,” he said.

Willox said the decision affirms the need for legislative change to the Fair Work laws.

“The laws need amendment to restore basic employer rights without spending hundreds of thousands of dollars in legal fees and court challenges, which small and medium business owners don’t have,” he said.

Mammone says the main issue following Barclay is that ACCI still has “significant concerns” about the operation of the general protection framework.

“The main area of concern is the high burden placed on an employer in a whole range of circumstances,” he says.

“Adverse protection framework applies to a whole range of issues other than just termination. Disciplinary proceedings can attract a claim and the burden is on the employer.”

“The feedback to us is that this is the du jour avenue of litigation and most matters are being settled before we are going to court. We are seeing an emergence of new go away money.”