In Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 Justice Tracey rejected an employee's claim that the TAFE had taken unlawful adverse action against him.

Mr Barclay was the sub-branch president of the Australian Education Union (AEU) and union delegate. He was employed by Bendigo TAFE as a senior teacher.

Mr Barclay was suspended on full pay for two weeks after he sent an email to AEU members alleging that several AEU members had informed him that they had witnessed or been asked to create false documents for a TAFE accreditation audit.

Mr Barclay maintained that Bendigo TAFE had taken adverse action against him, because Mr Barclay engaged in the following activities:

• he was a union officer (see s346(a) of the Act)
• he engaged in industrial activity (see 346(b), 347(b)(v) and (b)(iii) of the Act), or
• he exercised his workplace right to discuss issues with AEU members under the Victorian TAFE Teaching Staff Multi-Business Agreement 2009 (see s340(a)(ii), 341(1)(a), 341(1)(b) and 341(2)(j).

The Court held that Bendigo TAFE had not taken unlawful adverse action.

Justice Tracey stated that evidence of the employer's subjective reason was relevant to whether the adverse action was unlawful and that "[i]t has never been the case that an employer was prevented, by federal industrial legislation, from taking prejudicial action against an employee who happened to be a union member or a union official."

His Honour distinguished the recent interlocutory case of Jones v QTAC (2009) in which the court held that, on the balance of probabilities, disciplinary proceedings may constitute adverse action under the Act.

Justice Tracey noted that whether disciplinary proceedings amounted to adverse action was subject to a number of variables, such as, the impact on the employee, the bona fides of the employer and the rules under which the action was taken.

Key to the Court's decision was that it was accepted that Bendigo TAFE had not instigated the disciplinary proceedings for any reason that included the fact that Mr Barclay was a union delegate, that he participated in industrial action or that he had a workplace right.
Lessons for employers

The key lessons for employers out of the Bendigo TAFE decision are :

• To ensure that managers understand the new general protection provisions and this is reflected in training and procedures.
• That disciplinary matters, transfers, demotions and changes in terms and conditions of employment are undertaken fairly and reasonably and not in response to an employee exercising a workplace or industrial right.
• Employers have appropriate processes for managing complaints, including managing corporate memories because some adverse action claims can be commenced within six years of the event.

Despite the new laws in relation to adverse action, employers should take disciplinary action where appropriate, provided that that action is initiated on a bona fide basis and in accordance with any procedural rules, and not the basis of the employee's affiliation with a union.

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