Case: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Outcome: cited
The respondents rely upon the observations of both Barwick CJ (in dissent) and Mason J (in the majority) in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605. In that case, GMH dismissed an employee who was a member and delegate of the relevant union, on the articulated basis of the employee's unsatisfactory attitude to work and supervision. Section 5(1) of the Conciliation and Arbitration Act 1904-1976 (Cth) prohibited GMH from dismissing Bowling by reason of his being a member or delegate of the union. The majority of the industrial court convicted GMH of dismissing Bowling by reason of his position as a delegate. In considering the onus provision in GMH's appeal, Barwick CJ at 611 said this: 'I now turn to s 5(4) and the use which may properly be made of it. The precise terms of that subsection are:- "s.5(4) In any proceeding for an offence against this 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 he was not actuated by the reason alleged in the charge." It is a little difficult to state what are the element of the offence against s 5(1)(a) other than the reasons for the appellant's action: but, presumably, if effect is to be given to the provision, the dismissal itself is the other, and indeed the only other, element of the offence. In my opinion, before resort can be had to this onus provision, there must be before the court evidence which reasonably warrants the conclusion that the circumstance that the employee had been placed in the appropriate office of his union was possibly a reason for his dismissal. If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason.' 340 Accordingly, the respondents here say that there must first be some evidence that the reason alleged was 'possibly a reason' and if there is 'no basis' for concluding that the particular circumstance might have been a reason, the onus of demonstrating otherwise does not arise. Two things should be noted. First, this is nevertheless a slight basis for enlivening the operation of the respondents' onus and, secondly, the reason in question had to be a 'substantial and operative reason' . A requirement to demonstrate some evidence of such a circumstance before enlivening the respondents' onus is neither surprising in the context of a requirement to demonstrate a substantial and operative reason nor applicable to a position where the question is whether the prohibited reason was simply a reason for the conduct. 341 Mason J put the matter this way at pg 617: 'Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant.' 342 Therefore, it is said, consistent with the views of Barwick CJ and Mason J, the applicant must adduce evidence 'consistent with the hypothesis' that the respondents were actuated by a prohibited reason. It seems to me that the hypothesis is the allegation and the evidence is consistent with it. However, his Honour, Mason J, also said at pg 617: 'To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the main purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.' 343 The notion that evidence must be consistent with a hypothesis and the recognition that the statutory objective is to place the onus on the defendant in respect of those matters peculiarly within his own knowledge, seems to me to not require actual evidence of purpose on the part of the applicant.