Case: The King v Hush; Ex parte Devanny [1932] HCA 64 ; (1932) 48 CLR 487
Outcome: cited
Section 298K, it is contended, must be read subject to the objects of Pt XA contained in s 298A and particularly s 298F which has the effect of importing into s 298K a central notion of discrimination against a person or relevantly identified class of persons as compared with others. Since the termination was ubiquitous, there was no threshold of discrimination or differential treatment. Accordingly, the statutory presumption has no role to play in the circumstances of this case. The Employment Advocate must discharge an onus of establishing the colour of the 'ingredients' (to use a term adopted by Dixon J in another context in The King v Hush; Ex parte Devanny [1932] HCA 64 ; (1932) 48 CLR 487 at p.507) of s 298K which involves establishing facts which would support an hypothesis that the conduct occurred for a reason or reasons falling within s 298L and only then could the presumption contained in s 298V arise or have a role to play. 28 The notion that the Employment Advocate might prove the conduct and simply allege a reason or reasons falling within s 298L and then stand on the presumption as a proper discharge of the onus of proof fails, it is said, to understand the proper role of s 298V of the Act. 29 In relation to the second contravention based upon the alleged refusal to employ 11 of the 12 individuals, the respondents say that as to Blackadder, his employment was continued notwithstanding the alleged dismissal. As to Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss and J K Young, the respondents say that each of those former employees was offered re-employment and in some cases the offers of re-employment were taken up and in other cases refused. In the case of Hambly, the respondents say that he was not offered further work after the termination, for reasons related to his work performance and conduct. As to Swain, the respondents plead that he contacted the abattoir by letter dated 12 September 2002 and again on or about 18 January 2003 and was advised that no work was then available. Accordingly, the respondents deny a refusal to employ. 329 The conventional approach to this section is explained by Wilcox and Cooper JJ in David's Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at [109] , in these terms: 'Section 298L(1)(l) requires that the applicant prove the employee was dismissed from his or her employment. It also requires it to be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving, on the balance of probabilities, each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny [1932] HCA 64 ; (1932) 48 CLR 487 at 507'