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Improper union activity protected.

17/02/2011

A union rep, Mr Barclay, circulated an email to union members which passed on hearsay allegations of employer pressure to engage in fraudulent activity.   His employer suspended his employment, banned him from the premises, took away his internet access and commenced disciplinary proceedings.

Mr Barclary claimed that his employer had taken adverse action against him because of his union activity in breach of the Fair Work Act.  Adverse action provisions also prevent discrimination on the grounds of sex, race, disability etc. His employer defended itself on the basis that the action was not taken against Mr Barclay because he was a union rep. It said it took the action because his circulation of unconfirmed allegations was improper and damaging to the company.

The Court accepted that the employer did not intend to act against Mr Barclay because of his status as a union representative. However it found that the “objective” or “real” reason for the action was linked to his union position. This was because he was acting in his capacity as union representative at the time, and it was impossible to divorce his conduct from his union role.  The effect is that conduct by an employee acting in a union capacity – even if it is inappropriate, incompetent, or in breach of an employer’s policies or procedures – may be protected from any consequence.

Read the judgement in Barclay v Bendigo Regional Institute of Technical and Further Education.

(with thanks to Lyndall Henry, Solicitor)

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