[2012] HCA 32

In brief

  • The High Court has today confirmed that employees who act inappropriately but do so under the guise of union activity are not immune from disciplinary investigation and action.
  • The High Court unanimously overturned the Full Federal Court decision – a decision of great concern amongst employers.
  • The High Court decision has brought greater clarity to the breadth of the general protections provisions in the Fair Work Act 2009 (Cth) and has implications well beyond the issue of inappropriate workplace behaviour by employees who are union representatives.

‘…A person who happens to be engaged in industrial activity should not have any advantage not enjoyed by other workers’ [paragraph 60, French CJ and Crennan J]


Mr Barclay (an employee of the TAFE) was suspended on full pay, denied internet access and asked to show cause why he should not be subject to disciplinary action for his conduct in sending an email which the employer alleged was inappropriate.

The employee brought an action in the Federal Court alleging that the employer’s conduct amounted to adverse action for reasons which included his lawful industrial activity. In essence, the employee alleged that because the email was sent in his capacity as union representative any adverse action taken in response was in breach of the general protections provisions.

The employer said that it took the action in response to the content and sending of the email only and  the employee’s union membership, office and activities were not reasons for the action.

The Federal Court accepted the employer’s evidence that it did not act for any reason related to Mr Barclay’s union membership, office or activities. The Full Federal Court overturned this decision on the basis that it was effectively impossible for the employer to divorce the employee’s conduct (the email) from what gave rise to that conduct (union activity). The Full Court found that irrespective of what the employer said the failure was a ‘…failure of a union officer. It was not the failure of an employee and could not have been dealt with as such.’


  • The High Court decision has implications well beyond disciplinary action and ‘union activity’. It is relevant to any action an employer may be considering or may take (eg restructuring, workplace changes) where an employee’s protected attribute (eg disability, race, sex, making of a workplace complaint, industrial instrument coverage, etc.) might be raised as a motivating factor.
  • However the onus remains on employers to prove that any such action was not taken for reasons which include one or more protected attributes. This requires diligence in the management of issues and decisions that could be called into question under the general protections provisions and be the subject of proof. 
  • Employees are not immune from reasonable disciplinary action simply because of their union status or activity. Employers are better placed to require employees to adhere to their lawful and reasonable requirements following the High Court decision.