Bendigo TAFE has been cleared of taking illegal retaliatory action against a union official, allaying fears a lower court ruling had bestowed “protected species” status on union representatives.
The High Court decision delivered yesterday was welcomed by employers and the federal opposition as a victory for commonsense and means union officials who misbehave may be disciplined like any other employee.
A spokesman for Workplace Relations Minister Bill Shorten said he would consider the judgment and take advice on the detail before responding, but legal experts say it resolves a key complaint put by employers to a recent Fair Work Act review.
In the decision, the High Court full bench unanimously found the action by Bendigo Regional Institute of Technical and Further Education (BRIT) to suspend a teacher on full pay did not amount to adverse action under the 2009 act.
The act prohibits an employer from retaliating against employee union officials who take part in industrial activity.
Gregory Barclay, a senior teacher and delegate of the Australian Education Union (AEU), emailed AEU members at BRIT in January 2010 alleging serious misconduct by unnamed persons involving the production of false or fraudulent documents for an upcoming audit.
But he failed to report the allegations immediately to BRIT management and did not provide details when asked. BRIT chief executive Louise Harvey sent a letter asking him to show cause why he should not be disciplined and he was suspended on full pay pending a disciplinary investigation.
Mr Barclay and the AEU went to the Federal Court, arguing the college had contravened the act.
Dr Harvey said she took the action because of the way Mr Barclay had raised the allegations, not because of his union activities.
The Federal Court ruled for BRIT, but the full court of the Federal Court ruled for Mr Barclay and the union.
However, the High Court found the action against Mr Barclay did not occur for a prohibited reason.
Opposition workplace relations spokesman Eric Abetz said commonsense had prevailed.
“It is highly disappointing that Labor intervened in the High Court on the side of the union boss, Mr Barclay, arguing that it was the intention of the Fair Work Act to make union bosses untouchable even if they did the wrong thing,” he said in a statement.
“This decision will provide some much-needed comfort to the employers who have to put up with thuggish behaviour from some union bosses often on a daily basis.”