mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Noakes v Doncaster Amalgamated Collieries Ld (1940) A.C. 1014
Outcome: cited
It is true that wage slips for a number of the employees demonstrate that an entity other than the original employer was making wage payments. However, there is no evidence that any of the employees consented to an assignment or transfer of their employment. No new AWA was submitted to any of the employees which might have actively drawn to the attention of each individual the proposal to transfer their employment to a new entity and in the face of which an actual or implied consent might have arisen. The payment of wages by one Ramsey company might simply have reflected an administrative arrangement within the Ramsey group of companies for the discharge of that obligation. I can find no evidence which satisfies me that an assignment of the AWA occurred. In Noakes v Doncaster Amalgamated Collieries Ld (1940) A.C. 1014 at 1018 Viscount Simon L.C., observed: "Counsel for the appellant argued that a contractual right to personal service was a personal right of the employer and was incapable of being transferred by him to anyone else and that a duty to serve a specific master could not be part of the property or rights of that master capable of becoming, by transfer, a duty to serve someone else. It is, of course, indisputable that (apart from a statutory provision to the contrary) the benefit of a contract entered into by A to render personal service to X cannot be transferred by X to Y without A's consent, which is the same thing as saying that, in order to produce the desired result, the old contract between A and X would have to be terminated by notice or by mutual consent and a new contract of service entered into by agreement between A and Y. The rule is so strict that if the contract is between individuals on both sides and X dies, the contract of service is immediately dissolved Farrow v Wilson (citation omitted) ."
Case: Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; [2001] 112 FCR 232
Outcome: cited
The combined effect of these provisions is to introduce an additional element of discrimination into the conduct prohibited by s 298K so that it is not enough to establish, for example, the dismissal (conduct) of an employee for a prohibited reason to satisfy s 298K(1)(a). Rather the section, it is said, requires proof of the discriminatory dismissal of an employee for a prohibited reason. The essential difficulty with this construct is the failure to recognise that the legislative expression of the objectives of the Part is to be found in prohibiting nominated conduct by an employer carried out for a reason falling within s 298L(1). That is the formulation that captures prohibitions upon discriminatory conduct or victimisation. It is the conjunction of the conduct carried out for a prohibited reason (among others) that gives the s 298K conduct its discriminatory character. No other element need be superimposed upon the sections. That, however, is not to deny the relationship between the objects recited in s 298A and the language of implementation in s 298K and s 298L. Those sections might generally be described in terms of prohibiting the vice of discrimination and victimisation but the precise formulation of the method of implementation is to be found in 'conduct' for 'a prohibited reason'. The true role of Division 2 is not to impose a limitation upon the plain words of other provisions of the Act but to plot a point on the constitutional continuum of ensuring the Act in all its provisions is a valid law of the Commonwealth. See generally Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; [2001] 112 FCR 232 per Wilcox J at [57], [70] and [73]. 328 The respondents say that this notion of threshold discrimination has particular resonance in the application of s 298V also within Pt XA with the result that before s 298V can have any operation, the applicant must adduce evidence that demonstrates a reasonable hypothesis that conduct occurred for a prohibited reason and that such evidence was unchallenged or unaddressed. It will be recalled that s 298V casts an onus upon the respondents in these circumstances: 'S298V if: (a) in an application number this Div relating to a person's ... conduct, it is "alleged" that the "conduct" was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person ... to carry out the conduct for " that" reason or with that intent would constitute a contravention of this Part; it is "presumed" in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or that intent, unless the person ... proves otherwise.'
Case: Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19
Outcome: cited
Branson J put the matter in these terms in Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 at pg 31, [56]-[57]: 'I gave consideration to the significance of s 298V of the Act in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [56]-[61]. In that case [at 59] I noted that s 298V reversed the onus of proof not only with respect to the dominant reason for the relevant conduct but with respect to all operative reasons for that conduct.' 364 Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court ( Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of 'refusal to employ'. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party.
Case: Laz v Downer Group Ltd (2000) FCA 1390
Outcome: cited
In considering s 170CQ of the Act which provided a defence in relevant proceedings, if an employer proved that the termination of employment was for a reason or reasons that did not include a prescribed reason, Moore J in Laz v Downer Group Ltd (2000) FCA 1390 at [26] , concluded that s 170CQ enables 'the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise' , relying upon David's Distribution and R v Hush . In National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90, Weinberg J at [50] observed: 'By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise' . See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited &amp; Ors v Maritime Union of Australia &amp; Ors (1998 1999) [1998] HCA 30 ; 195 CLR 1 per Gaudron J at [123]. Finally, in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267, Northrop J considered the operation of s 5(4) of the Conciliation and Arbitration Act 1904-1975 (Cth) which provided that in any proceeding for an offence against the section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge and observed: 'The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer. It is for this reason that s 5(4) is of such importance it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities'.
Case: National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90
Outcome: cited
In considering s 170CQ of the Act which provided a defence in relevant proceedings, if an employer proved that the termination of employment was for a reason or reasons that did not include a prescribed reason, Moore J in Laz v Downer Group Ltd (2000) FCA 1390 at [26] , concluded that s 170CQ enables 'the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise' , relying upon David's Distribution and R v Hush . In National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90, Weinberg J at [50] observed: 'By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise' . See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited &amp; Ors v Maritime Union of Australia &amp; Ors (1998 1999) [1998] HCA 30 ; 195 CLR 1 per Gaudron J at [123]. Finally, in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267, Northrop J considered the operation of s 5(4) of the Conciliation and Arbitration Act 1904-1975 (Cth) which provided that in any proceeding for an offence against the section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge and observed: 'The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer. It is for this reason that s 5(4) is of such importance it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities'.
Case: Transport Workers' Union v De Vito (2002) 140 IR 33
Outcome: cited
There is no doubt the applicant has the onus of establishing the causes of action on the balance of probabilities but s 298V effects a discharge of that onus once the relevant conduct is proven and the allegation of a prohibited reason made. Although the respondents rely upon observations of Ryan J in Transport Workers' Union v De Vito (2002) 140 IR 33 at 40, his Honour was simply observing that when the conduct itself is put in issue, the applicant has an evidentiary onus of establishing that matter before the respondent is called upon to satisfy an onus of proving a reason other than the alleged prohibited reason. The two classes of conduct asserted here are 'dismissing an employee' and 'refusing to employ another person'. It may be that the content of other classes of conduct, 'altering the position of an employee to the employee's prejudice' or 'discriminating against another person in the terms or conditions of an offer of employment', require greater forensic evidence of the character of the conduct before an onus as to a prohibited reason falls to the respondent. In any event, that is not the case here.
Case: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34
Outcome: cited
It should also be remembered that s 298K(1) has effected a change in the law put this way by Nicolson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at 69: 'In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change in the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" that is it would have to be a reason'. That passage has been approved by Goldberg J in Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 and Weinberg J in NUW v Qenos (supra) at [57] and [58]. 347 There must be, therefore, it is said, some demonstrated element of 'singling out' of an employee or if a class of employees is involved, the class must be singled out for special treatment as a class: Health Services Union of Australia v Tasmania (1996) 73 IR 140, per Marshall J; and Maritime Union of Australia v Geraldton Port Authority (supra). In Health Services , the actual conduct of singling out a union member for denial of a wage increase was held to constitute an 'injury' for the purposes of s 298K(1)(b) and in MUA v Geraldton Port Authority , an offer made to all employees in the relevant class of a redundancy package did not constitute an injury or a threat to injure an employee for the purposes of s 298K(1)(b) but simply an offer open to acceptance or rejection.
Case: Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205
Outcome: cited
It should also be remembered that s 298K(1) has effected a change in the law put this way by Nicolson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at 69: 'In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change in the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" that is it would have to be a reason'. That passage has been approved by Goldberg J in Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 and Weinberg J in NUW v Qenos (supra) at [57] and [58].
Case: Health Services Union of Australia v Tasmania (1996) 73 IR 140
Outcome: cited
There must be, therefore, it is said, some demonstrated element of 'singling out' of an employee or if a class of employees is involved, the class must be singled out for special treatment as a class: Health Services Union of Australia v Tasmania (1996) 73 IR 140, per Marshall J; and Maritime Union of Australia v Geraldton Port Authority (supra). In Health Services , the actual conduct of singling out a union member for denial of a wage increase was held to constitute an 'injury' for the purposes of s 298K(1)(b) and in MUA v Geraldton Port Authority , an offer made to all employees in the relevant class of a redundancy package did not constitute an injury or a threat to injure an employee for the purposes of s 298K(1)(b) but simply an offer open to acceptance or rejection.
Case: Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998 - 1999) [1998] HCA 30 ; 195 CLR 1
Outcome: cited
In considering s 170CQ of the Act which provided a defence in relevant proceedings, if an employer proved that the termination of employment was for a reason or reasons that did not include a prescribed reason, Moore J in Laz v Downer Group Ltd (2000) FCA 1390 at [26] , concluded that s 170CQ enables 'the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise' , relying upon David's Distribution and R v Hush . In National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90, Weinberg J at [50] observed: 'By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise' . See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited &amp; Ors v Maritime Union of Australia &amp; Ors (1998 1999) [1998] HCA 30 ; 195 CLR 1 per Gaudron J at [123]. Finally, in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267, Northrop J considered the operation of s 5(4) of the Conciliation and Arbitration Act 1904-1975 (Cth) which provided that in any proceeding for an offence against the section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge and observed: 'The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer. It is for this reason that s 5(4) is of such importance it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities'. 354 Weinberg J recognises at [121] and [122] the susceptibility of what I might call distributed conduct (and not merely bilateral conduct) to the reach of s 298K, illustrated in the circumstances of Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (supra). His Honour said this: 'There, the conduct impugned was a decision by the employers to dismiss all members of the MUA in their employ, and to ensure that no funds were available to meet the legal obligations owed to those employees. It is one thing for an employer to decide to dismiss all the employees forthwith because of their membership of a particular union. That conduct falls squarely within s 298K. It is conduct which is directed to individual employees in the sense spoken of by the Full Court in BHP Iron-ore Pty Ltd v Australian Workers' Union, albeit all individual employees.'
Case: Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117
Outcome: cited
On this issue, the respondents say this. In Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117, Moore J, sitting in the Industrial Relations Court of Australia, said: '... the expression "refuse to employ" deals with ... actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise. It concerns actual and not theoretical employment'.
Case: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008
Outcome: cited
In Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 , Wilcox J observed at [50] that: 'A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy." 363 The respondents say that the applicant has not demonstrated that a vacancy existed or might arise. Moreover, there is no evidence that actual employment might otherwise arise but for the alleged refusal. The allegation of refused employment is thus entirely theoretical.
Case: Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435
Outcome: cited
Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court ( Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of 'refusal to employ'. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party.
Case: Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440
Outcome: cited
Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court ( Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of 'refusal to employ'. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party.