By majority, Gray and Blomberg JJ found that the action contravened the general protections provisions of the Act and that the employer had engaged in adverse action against Mr Barclay. They did so because the objective reasons for the action included the reason that the employee was engaging in industrial activities. Whatever the employer said or believed about the basis for its actions, “[t]he sending of the email, and the manner in which it was expressed, were part of the exercise by Mr Barclay of his functions as an officer of the AEU” and were “at the heart of his engagement in industrial activity.”
Their Honours said that under the general protections provisions in the Act, “[e]mployees are to be free to assume membership and office in industrial associations and to be represented by industrial associations, and to engage in lawful industrial activities, without the risk that their employers will disadvantage them as a consequence.”
To defeat a claim, the Court held, the employer would need to show that the real reasons are “dissociated” from the proscribed grounds. That is, not only that the employer was acting to manage the employee’s conduct, but that the employer’s action could not reasonably be seen as based on one of the proscribed grounds either.
In the circumstances, contrary to the trial judge’s findings, their Honours found that the objective reason for the action taken against Mr Barclay was the exercise of his functions as an industrial officer and his engagement in industrial action. The fact that the employer may have characterised Mr Barclay’s conduct as being in his capacity as an employee and a breach of his employment obligations does not alter the objective fact that in sending the email he was in reality acting in his capacity as an industrial officer.
The appropriate avenue to address concerns with a union official’s conduct, their Honours suggested, was to complain to the union secretary, because if Mr Barclay failed in his duties as a union officer, this was “the failure of a union officer” and not of an employee.