Federal Court's industrial ruling 'misguided'

A LANDMARK industrial ruling giving union delegates "carte blanche" to criticise their employers should be "overturned".

A LANDMARK industrial ruling giving union delegates "carte blanche" to criticise their employers should be overturned by the High Court, industrial relations experts have predicted.

Addressing a conference in Sydney yesterday, law professors Ron McCallum and Andrew Stewart lashed the Full Federal Court for backing the claim of aggrieved Australian Education Union delegate, Greg Barclay, in his stoush with the Bendigo Institute of TAFE.

The Fair Work Act also faced fierce criticism, with Professor Stewart attacking Labor's "fetish" for inefficient collective agreements.

Mr Barclay had emailed his co-workers with allegations of serious corruption at the TAFE, prompting chief executive Louise Harvey to suspend Mr Barclay and refer him for misconduct proceedings.

But the full Federal Court, by a 2-1 majority, held that - from an objective viewpoint - Mr Barclay's rights as a union official had been infringed, even if Dr Harvey had not intended to do so.

Sydney University Professor Emeritus McCallum, co-author of this month's Fair Work review, said the majority decision had imposed a "not very workable test" for future cases.

"(The decision said) irrespective of the intent of the CEO, it gave a part-time union official carte blanche to almost say anything," he told the university's Labour Law Conference.

"We found the dissenting judge more in tune with mores, and it should be in all the circumstances of what the (employer) knew or ought to have known that should have been the determinants."

Adelaide University's Professor Stewart said: "In terms of a sheer question of interpretation of the current legislation Justice (Bruce) Lander's dissenting judgment in the Federal Court is far closer to the established view of how provisions of that sort should be interpreted, and I expect it (the dissenting opinion) will be upheld in the High Court."

The Fair Work review proposed legislating a subjective test to replace the objective one.

Professor Stewart said most businesspeople were satisfied with the Fair Work Act, but described independent flexibility arrangements as a "silly" and "incredibly awkward" attempt to balance workplace efficiency with Labor's opposition to individual agreements.