Case: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
Outcome: referred to
As to the circumstantial operation of the components of pars (j) and (m) of s 298L(1), Branson J observed in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, at [161]-[162] as follows, concerning what ANSTO contended Mr Lever was required to establish in relation to the factual components thereof: 'In respect of the allegation that the respondent injured Mr Burford in his employment, or altered his position as an employee to his prejudice, for the reason, or for reasons that included the reason, that Mr Burford had participated in proceedings under an industrial law, I have concluded in [75] above, that Mr Burford did not relevantly participate in proceedings under an industrial law within the meaning of s 298L(1)(j). Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding. Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent's conduct. It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another. For analogous reasons, I do not consider, so far as the circumstances proscribed in s 298L(1)(m) are concerned, that s 298V relieves the applicant from the obligation of establishing as a fact that the relevant employee absented himself from work without leave for the purpose of carrying out duties as an officer of an industrial association (s 298L(1)(m)(i)) and that the employee applied for leave before absenting himself and that leave was unreasonably refused or withheld (s 298L(1)(m)(ii)). The impact of s 298V, in my view, is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent's conduct following the absence of the employee from work.' 149 In an apparent endeavour to invoke the operation of pars (i) and (j) of s 298L(1), Mr Lever asserted by his points of claim (appearing in the subpar (b) particulars to par 34) that he '... had sought a mediation session, a Peer Review and/or a Reference Panel to assist in the resolution of his classification dispute'. I have difficulty in comprehending how any of those processes may have constituted ' a proceeding under an industrial law ' within legislative paragraph (j), since the notion of 'proceeding' connotes a form of curial process. Mr Lever's affidavit evidence disclosed of course that he participated ultimately in the mediation which was chaired by ANSTO's Human Resources Officer, Ms Blackbourn, having 'forborne from seeking peer review' on 12 December 2002, as submitted by ANSTO, and having then sought a reference panel in April 2003. In any event, ANSTO emphasised that Mr Lever was 'obliged to establish by evidence the factual components of the descriptions', as contained in pars (i) and (j) of s 298L(1), concerning ' the prohibited reasons ' which he propounded. I was referred in that context to what was observed by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161] that s 298V is ' to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the [employer's] conduct... [and] is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another ... '. Clearly, so ANSTO's submissions continued on present point, Ms Blackbourn as a so-called 'internal mediator' was merely an employee of ANSTO and had no powers under an industrial law, 'whether to make binding orders as to a person's rights or otherwise', and accordingly her function 'plainly did not meet the descriptions in s 298L(1)(i) or (j)'. ANSTO therefore submitted that '[n]o circumstances existed in which the prohibited reasons specified in s 298L(1)(i) and (j) could sensibly be alleged, much less presumed under s 298V'. ANSTO added for completeness that '[i]t is significant that the contemporaneous documents written by [Mr Lever] make no allegation of any of the prohibited reasons now alleged'. There is clear force in those ANSTO submissions.