Case: David's Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463
Outcome: cited
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' 332 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'. 334 The point of distinction the respondents seek to demonstrate is this. The majority judgment in David's Distribution v NUW properly understood, is not authority for the proposition that a bare allegation of a prohibited reason in respect of proven or admitted conduct, for example, termination of employment, is sufficient to cast an onus of "proving otherwise" upon the respondents. The reasons [95] to [114] demonstrate, it is said, that evidence was available by reason of inferences that the dismissed picketers were actuated by dissatisfaction with their industrial conditions, that the employees banded together in part for that reason and that a statement by a David's Distribution management officer (Mr Johnson) provided evidence of at least a serious question to be tried of a reason for dismissals which was a prohibited reason. The evidence of a prohibited reason concerning Mr Johnson was not denied by him. David's further contended that the termination of employment affected all the picketers equally, no individual was selected and the only inference open was that termination was referrable to picketing conduct. David's contended that because the evidence was consistent with non-prohibited reasons, the mere allegation of a prohibited reason cannot operate to place an onus upon the respondents. Their Honours, Wilcox and Cooper JJ said: 'The difficulty with this submission is the uncontradicted evidence of Mr Joseph that, on 17 July 1998, Mr Johnson, informed him that David's intended to terminate another ten people. ... The statement of Mr Johnson was itself evidence that there was a serious question to be tried that there was a different or additional reason for the dismissals, which was a prohibited reason.'