Case: McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 
Outcome: referred to
Mr Lever referred additionally to the recent decision of this Court in McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111, where the issue arose as to whether the refusal to employ certain persons, or more precisely to re-employ those persons, had been made inferentially for the prohibited reason of their membership of a trade union. In the course of his Honour's comprehensive reasons for judgment approximating 110 pages, Greenwood J found that the four persons the subject of the Employment Advocate's application had been refused re-employment inferentially for the prohibited reasons the subject specifically of pars (a), (h), (j), (k) and (l) of s 298L(1) of the Act. Counsel urged upon the Court a consideration of what he described as 'the very detailed and careful recent reasoning' of Greenwood J in McIlwain which followed upon his Honour's acknowledgement that the onus of establishing the various causes of action propounded in that case was placed on the applicant according to the balance of probabilities, but that s 298V stipulated for the discharge of that onus by presumption, once conduct was relevantly established ' unless the person or industrial association proves otherwise ' (to cite the concluding words of the section). The following dictum of his Honour appears at 204: 'The dismissal conduct is admitted. The refusal to employ conduct is established. Having adduced evidence probative of the conduct, the assertion of the prohibited reasons gives rise to the operation of s 298V, thus enlivening the presumption which discharges the onus cast on the applicant to establish the causes of action on the balance of probabilities and casts an onus on the respondents to prove affirmatively that the prohibited reasons alleged were not a reason for the conduct.' (Emphasis in original.) 29 His Honour pointed out that there must be demonstrated ' differential treatment ' by the employer of an individual employee or other person of the identified class, as against other employees, and the question arising in principle was whether the conduct, from the standpoint of the individual concerned, was carried out for the prohibited purpose. Historical factors were found to give rise in the circumstances of that case to inferences duly open to be drawn by the Court to the effect that the prohibited reasons constituted a basis for the conduct of the refusal to employ, emphasis being placed upon the timing of evolving events as demonstrative of a requisite interconnection. There had occurred in that regard a succession of offers of re-employment made to certain individuals, after the dismissal of the group of employees seeking re-engagement, such as to evidence a constructive refusal of the employer to employ the members of that group. 139 Mr Lever raised in reply the proposition that '[c]ontrary to [ANSTO's] submissions, to gain the benefit of the presumption in s 298V does not require [Mr Lever] to establish a "hypothesis" to support the allegation' advanced by him, and the Court was referred to the reasons for judgment in McIlwain at [371]-[374], where 'the dismissal conduct [was] admitted' and '[t]he refusal to employ conduct [was] established', and in particular at [374] where the following appeared: 'The Act recognises that the field of reasons motivating a decision-maker within an employer to dismiss an employee or refuse to employ a person lies uniquely within the mind of that person and although evidence of secondary facts might give rise to inferences probative of the ultimate facts in issue concerning the reasons for conduct, the burden of proving reasons other than the allege [ sic ] prohibited reasons falls to the respondents. That onus has not been discharged.' Upon that purported footing, Mr Lever submitted in reply that '... it is not difficult to create a viable hypothesis that [ANSTO], aware of the potential benefits to [Mr Lever] in progressing the review application, determined to thwart any review to prevent [Mr Lever] accessing his industrial remedies'. Mr Lever laid emphasis in that regard on Dr Doherty's 'global denials', but without coming comprehensively or at least adequately to issue by any such purported reply with the essence of ANSTO's contentions upon the first series of breaches . 140 ANSTO next addressed Mr Lever's contention, within the context of the second series of breaches framed by him, as to untrue representations on the part of ANSTO, per medium of Dr Doherty, made to him in the presence of Mr Crakanthorp in the course of Mr Lever's discussion of his CAS assessments for the years 2000-2001 and 2001-2002 respectively. It will be recalled that the subject arose in the context of Dr Doherty's decision made on or about 2 August 2002 to grant Mr Lever one salary increment within PO2, with retrospective effect from 1 July 2001, and a further salary increment within PO2 with effect from 1 July 2002, with the consequence that Mr Lever's employment level at ANSTO remained within Band 5. ANSTO purportedly contrasted the complaint of Mr Lever in that regard as to manifest inadequacy, where appearing in par 25 of the points of claim, with Mr Lever's evidence, contained in par 45 of his affidavit, as to being 'disappointed' and having '... felt it was contrary to the representations that he had made to me in February 2001 to the effect that I would continue to be promoted'. ANSTO referred in any event to the meeting on 21 August 2002 between Mr Lever, Dr Doherty and Mr Crakanthorp, and to the four representations, particularised by Mr Lever in relation to paragraph 26 of the points of claim, as having been allegedly made on that occasion by Dr Doherty, which four representations are reproduced below for ease of reference: 'Particulars of conduct (a) Dr Doherty represented to the Applicant that ANSTO/Dr Doherty was required to keep "some relativity" between ANSTO employees in relation to their advancement, thereby implying that ANSTO/ Dr Doherty was entitled to not advance the Applicant for the sake of relativity with other employees, in circumstances where the Applicant ought to have been advanced on merit and in accordance with the classification processes; (b) That it would take the Applicant twelve years to be promoted to SPO1; (c) That Professor Garnett would never agree to the Applicant being promoted to SPO1; and (d) That ANSTO/Dr Doherty was not able to retrospectively address the issue of Mr Lever's classification.' 141 As to the above first false representation above particularised by Mr Lever, it was summarised by ANSTO to the effect that the subject thereof was directed to the need for 'relativity' as between ANSTO's employees with respect to 'advancement', it being common ground that in the course of that meeting, Dr Doherty said words to the effect of 'I need to keep some relativity within IM' (referring thereby to ANSTO's Information Management Group). It was contended by ANSTO that there was 'no evidence in either person's affidavit from which it can be concluded that this statement by Dr Doherty was false'. That first alleged misrepresentation was repeated by Mr Lever in the course of his case in reply, where his counsel emphasised that '[ANSTO's] submission [on this issue] flies in the face of the relevant industrial instruments that are before the Court and at all material times set out objective criteria for advancement [and] [t]he allegation that the statement was false is made out on the evidence' without citing any relevant evidence.