The Federal Government has intervened in support of the AEU in the High Court test case on the Fair Work Act's adverse action provisions.

In its submission on Bendigo TAFE's appeal against the Federal Court full court majority ruling that it breached Labor's general protection laws when it disciplined an AEU delegate, the Government effectively backs the majority's finding (see Related Article).

Justices Peter Gray and Mordy Bromberg held that it wasn't the employer's intent alone that mattered in determining the reason for an adverse action, and the "search was for what actuated the conduct, not for what the person thinks he or she was actuated".

"In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question," they held.

The Government in its submission agrees, arguing that:

• Asking whether s346 poses an "objective" or "subjective" test is "to pose a question that is apt to mislead". The operation of s346 turns on whether adverse action has taken place "because of" a proscribed reason.
• Where a person is presumed to have taken adverse action for a proscribed reason, he or she won't necessarily prove otherwise by giving evidence that the action was taken for a reason or reasons believed not to be proscribed, even if that evidence is accepted as honest.
• It is necessary to distinguish between what must be disproved to avoid a finding that s346 was contravened and the evidence that will be enough to discharge that burden.
• Evidence that a person didn't believe that his or her actions were taken for proscribed reasons, if accepted as honest, is plainly of central relevance but might not be enough. This is because the conscious reasons of the decision-maker will not be decisive if he or she makes a mistake of fact or law, or if the evidence is insufficient to exclude the existence of reasons additional to those advanced, or if a decision was based on a factor of which the decision-maker was not conscious.
• In each of those circumstances, honest evidence about the reason or reasons for which particular action was taken may not be enough to discharge the burden of proving that adverse action was not taken for a proscribed reason.
• The reasons given by the TAFE chief executive against the AEU delegate revealed an objective connection between the action taken and a proscribed reason. While she didn't characterise her own actions in a way that recognised that, her evidence raised the possibility that a proscribed reason was a 'substantial and operative' reasons for the adverse action taken. In those circumstances, her evidence could not be accepted as determinative of the absence of a proscribed reasons.

The Government also argues that the Federal Court majority was correct in concluding that, where the adverse action alleged is dismissal, injury in employment or prejudicial alteration (as opposed to discrimination), a comparative test of the kind dealt with in Purvis is not required. The protection given by the Fair Work Act on these three types of adverse action depends on the attributes of the protected people, and doesn't require the use of a comparator.

Commenting on the Federal Court decision at the time, the lawyer for the AEU and the teacher at the centre of the case, Holding Redlich partner David Shaw, said that: "Provided that the employee is performing his or her union activities, employers will not be able to dismiss, discipline or subject employees to any detriment by reason of their union activities simply by claiming that their actions were not motivated by the union activity in question."

Conservative IR commentator Ian Hanke, who is also the communications and strategy director for the HR Nicholls Society, yesterday criticised the Government's submission as siding with the union against the national interest.

"If successful the government will be cloaking unionists and union activity with complete protection. It will mean that anything that can be described as union activity will now be sheltered by the adverse action provisions of the FWA," he said.

Hanke describes as "extraordinary" the position that a court can determine the real or subconscious reason behind a decision "even if that person made the decision honestly and based on the facts at hand".

The TAFE in September won special leave to challenge the Federal Court full court finding (see Related Article).