Union delegates are employees who provide on the ground representation for union members. They are not paid by their union. They are paid by the employer to perform work like anyone else. Whilst they are not employed by their union, they have accepted the responsibility of organising their fellow workers, are recognised under their union's rules, and (as a general rule) are afforded a representative status under applicable industrial instruments. They are, as a result, their union's voice - a crucial link between their union and a particular employer's workforce.

Imagine this scenario. A union delegate organises an unauthorised 'stop-work' meeting in protest of recent rostering changes made by the employer. Following the meeting, the employees decide to continue the protest by stopping work for the rest of the day. The employer quickly applies to Fair Work Australia, the independent industrial Tribunal, for an order requiring the union to stop organising the unlawful industrial action. The application is heard quickly - the same day.

However, at the hearing, the union says that it had nothing to do with the industrial action. It didn't know about it. It hadn't authorised the delegate to organise it. For those reasons, the union should not be ordered to direct the employees to return to work, nor should the union be prevented from organising further industrial action.

This is (unfortunately) becoming an increasingly common story. Lawful and unlawful industrial action is often coordinated or organised by the relevant union's delegates. Despite this, unions frequently attempt to distance themselves from unlawful behaviour engaged in by their delegates in order to escape potential liability for the action. This raises the obvious question: When is a delegate's conduct in pursuit of their union's cause? This issue becomes pointed when in other situations delegates relish the protective cloak that their delegate status appears to provide.

Now picture this scenario. A union delegate abuses/threatens a manager following discipline of a union member. What is the position now? The delegate asserts that he was pursuing a cause on behalf of their union's members. Indeed their union, whilst not involved in the issue, jumps to his defence. And the union has some law in its corner.

In the Barclay case, the employer attempted to discipline an employee and union delegate for misconduct. The employee had made serious allegations of fraud against the employer in an email sent to union members, rather than first raising these allegations with his employer. A majority of the Full Court of the Federal Court held that the employee's actions were in the context of his position as a union delegate. On that basis, the employer was required to address the issue with the union, rather than the employee directly. The majority found that the conduct complained of was, in truth, the conduct of the union. The employer's actions in attempting to discipline the delegate were found by the majority of the Full Court to be unlawful. This potentially prevents an employer from taking any form of disciplinary action in response to misbehaviour of a union delegate.

So unions can have a bet each way. On one hand, unions can argue that their delegates are performing union functions and should therefore be afforded special protection from disciplinary action. On the other hand, unions can attempt to avoid being bound by their delegates' conduct (particularly in the context of delegates organising industrial action) by denying involvement in the issue.

The majority's decision in Barclay is currently on appeal to the High Court. Despite the Barclay decision, employers should not be hesitant to hold union delegates, and their unions, to account for unlawful behaviour. It should not discourage employers from embarking on a disciplinary process for sound reasons, nor should it discourage employers from seeking orders against unions when their delegates organise unlawful industrial action. This is often the best way to discourage further unlawful behaviour going forward. To do otherwise, leaves the employer with the unpalatable option of proceeding directly against their employees, which, for a variety of reasons, is not an attractive one. Unions know this.