In the most recent edition of PCS’ quarterly publication, Strateg-Eyes, we took a look at a decision (Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76) in which the Full Court of the Federal Court (the “Full Court”) held that adverse action is not taken against an employee if that employee is dismissed due to the impact on the employer of the employee exercising a workplace right, rather than due to the exercise of that workplace right itself.

We can now report that the High Court has refused to grant the CFMEU leave to appeal that decision.

The High Court’s refusal is significant in that it cements as good law the Full Court’s view that there is a distinction between the impact and exercise of a workplace right. This means that employers may now be able to defend a general protections claim despite:

>    the employee in question exercising a workplace right; and
>    adverse action having been taken,

if the employee’s exercise of that right negatively impacts the business, and that impact is the reason for the adverse action being taken.

While such arguments (and their potential for success) will always play out in light of the circumstances (for example, the terms of any relevant modern award or enterprise agreement), there is no doubting the significance of this development.

On top of previous decisions (Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41) which have held that it is the subjective reasons of the employer that are relevant in determining whether adverse action has been taken for a “prohibited reason”, the High Court’s refusal has mounted another hurdle for employees to clear if they are to succeed in a general protections claim.

For further advice on what the High Court’s refusal might mean for your organisation, contact one of the PCS team today.