Bendigo Tafe v Barclay and Anor – a postscript

On 7 September 2012, the High Court of Australia handed down its much anticipated decision in Board of Bendigo Regional Institute of Technical and Further Education v. Barclay and Anor [2012] HCA 32. 

As some commentators predicted, the High Court upheld the Bendigo Tafe’s appeal, and quashed the decision of the majority of the Full Court.

In a short judgment on 3 October 2012, the High Court awarded costs against the Respondents (Barclay and the Australian Education Union).

Rather than provide another case summary of the decision (you can read Norton Rose’s detailed client update here), set out below are some of the questions that arise following the High Court’s decision:

What will the Government do now?  Given that the High Court has interpreted the adverse action provisions in the Fair Work Act 2009 (FW Act) as being wholly consistent with similar legislative provisions in former statutes, and the High Court’s decision in General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235, the answer might be nothing.  However, given the Government’s opposition to Bendigo Tafe’s appeal, it is unclear whether the Government will seek legislative reform to the FW Act to give effect to the decision of the majority of the Full Court.  The adverse comments made against the Government by Justice Heydon in the Court’s costs decision – where he described the Minister’s intervention as ‘partisan’ and criticized the ‘extraordinary weakness’ of Respondents’ case – suggest that the Government may be reluctant to take further action.

Is the Fair Work Act Review Panel’s recommendation consistent with the High Court’s decision?  As previously flagged, the Fair Work Act Review Panel recommended that Division 7 of Part 3-1 of the FW Act be amended so that the ‘central consideration about the reason for adverse action is the subjective intention of the person taking the alleged adverse action.’  While that appears to be consistent with the High Court, the Panel noted that this approach ‘in theory and perhaps in practice may reduce employee protections’.  If the FW Act is simply consistent with previous statutes, it is unclear how the adverse action provisions ‘reduce’ protections. 

What has been the impact of this litigation?  While many consider the ‘right’ result was reached by the High Court, the decision of the majority of the Full Court was cited, considered or applied in 17 published decisions of the Federal Court or Federal Magistrates Court (and doubtlessly relied on by applicants in many other applications).  There is no anecdotal evidence that the majority’s decision generated a ‘spike’ in adverse action claims in the past 18 months, however, from a practitioner’s perspective, it has certainly meant that we have urged clients to be cautious of this decision in the actions they have taken or proposed to take.