Case: Heidt v Chrysler Australia Ltd (1976) 26 FLR 257
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'. 351 The respondents further rely upon Heidt v Chrysler Australia (supra) and National Union of Workers of Qenos Pty Ltd (supra) as authority for the proposition that there must be demonstrated "differential treatment" by an employer as against an individual employee or other person or an identified class of persons as against others. The decision in Heidt v Chrysler (supra) concerned a challenge to the dismissal of an employee on grounds that the dismissal was actuated by reason of the employee's membership of the Union, his entitlement to an award and his membership of a Union that was seeking better conditions about which he was dissatisfied. The respondents rely upon this passage from the judgment of Northrop J at page 270: 'Counsel for the informant did not argue that the defendant had failed to prove that, in dismissing the informant, it had not been actuated by reason of either of the circumstances that the informant was a member of an organisation or was entitled to the benefit of an award. To so argue would have been futile. It was a condition of his employment by the defendant that the informant become and remain a member of the organisation. The award was binding on the defendant with respect to all employees coming within the scope of the award, whether members of the organisation or not. I find that the defendant, in dismissing the informant, was not actuated by reason of the circumstance that the informant was a member of an organisation, nor by reason of the circumstance that the informant was entitled to the benefit of an ward.'