THE CONSIDERATION OF THE PROVISIONS
324 Part XA of the Act has the objects (in addition to s 3 objects) relevantly, of ensuring that employers and employees are free to join industrial associations of their choice (or not join) and ensuring that employers and employees are not discriminated against or victimised because they are, or are not, members or officers of industrial associations (s 298A). The respondents say these notions of discrimination and victimisation are central to the operation of Pt XA and further, the proper construction of the provisions of Div 2 of the Part has the effect of introducing an additional qualification upon that which must be established in order to demonstrate conduct in contravention of Div 3 and particularly s 298K of Div 3.
325 The argument is this. Section 298C applies Pt XA 'only to the extent provided for by Division 2'. Section 298F(1) says Pt XA applies to conduct:
'carried out with a purpose or intent relating to a person's participation or non-participation (in any capacity) in:
(a) any proceedings under this Act; or
(b) any other activity for which the Act provides.'
326 Section 298F(2) applies Pt XA to conduct carried out with a purpose or intent relating to:
'(a) the fact that an award, a certified agreement or an AWA applies to a person's employment; or
(c) the fact that the person is bound by an award, a certified agreement or an AWA.'
327 The combined effect of these provisions is to introduce an additional element of discrimination into the conduct prohibited by s 298K so that it is not enough to establish, for example, the dismissal (conduct) of an employee for a prohibited reason to satisfy s 298K(1)(a). Rather the section, it is said, requires proof of the discriminatory dismissal of an employee for a prohibited reason. The essential difficulty with this construct is the failure to recognise that the legislative expression of the objectives of the Part is to be found in prohibiting nominated conduct by an employer carried out for a reason falling within s 298L(1). That is the formulation that captures prohibitions upon discriminatory conduct or victimisation. It is the conjunction of the conduct carried out for a prohibited reason (among others) that gives the s 298K conduct its discriminatory character. No other element need be superimposed upon the sections. That, however, is not to deny the relationship between the objects recited in s 298A and the language of implementation in s 298K and s 298L. Those sections might generally be described in terms of prohibiting the vice of discrimination and victimisation but the precise formulation of the method of implementation is to be found in 'conduct' for 'a prohibited reason'. The true role of Division 2 is not to impose a limitation upon the plain words of other provisions of the Act but to plot a point on the constitutional continuum of ensuring the Act in all its provisions is a valid law of the Commonwealth. See generally Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] 112 FCR 232 per Wilcox J at [57], [70] and [73].
328 The respondents say that this notion of threshold discrimination has particular resonance in the application of s 298V also within Pt XA with the result that before s 298V can have any operation, the applicant must adduce evidence that demonstrates a reasonable hypothesis that conduct occurred for a prohibited reason and that such evidence was unchallenged or unaddressed. It will be recalled that s 298V casts an onus upon the respondents in these circumstances:
'S298V if:
(a) in an application number this Div relating to a person's … conduct, it is "alleged" that the "conduct" was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person … to carry out the conduct for "that" reason or with that intent would constitute a contravention of this Part;
it is "presumed" in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or that intent, unless the person … proves otherwise.'
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) 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) 48 CLR 487 at 507'
330 The reference to R v Hush; Ex parte Devanny reflects reliance upon the observations of Sir Owen Dixon in considering in the context of a prosecution for an offence against the Crimes Act 1914-1932 (Cth), the proper role of a provision that rendered the averments of the prosecution prima facie evidence of the matter averred. Apart from the criminal character of that conduct, the section did not place an onus upon the accused to disprove the allegation. His Honour observed that 'while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, [the section] provides, in effect, that the allegations of the prosecutor shall be sufficient in law to "discharge" that onus.'
331 Branson J put the matter in these terms in Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 at pg 31, [56]-[57]:
'I gave consideration to the significance of s 298V of the Act in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [56]-[61]. In that case [at 59] I noted that s 298V reversed the onus of proof not only with respect to the dominant reason for the relevant conduct but with respect to all operative reasons for that conduct.'
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) 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 & Ors v Maritime Union of Australia & Ors (1998 - 1999) 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'.
333 The applicant relies upon the language of the explanatory memorandum for the Act tabled in the House of Representatives which provides by par 16.40 in these terms:
'The consequence of s 298V is that, once a complainant has alleged that the conduct carried out, or threatened to be carried out, in relation to him or her is motivated by a reason or intent that would contravene the relevant provision(s) in Part XA, the person or industrial association will have to establish, on the balance of probabilities, that the conduct was not carried out for the unlawful reason or intent. This reflects the existing provisions in the equivalent offence provisions of the IR Act which are to be repealed and replaced by Part XA. They are included because of the difficulty for an applicant establishing the prohibited motive in these kinds of cases.'
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.'
335 Accordingly, the respondents say David's Distribution v NUW is authority for the proposition that where evidence exists of a basis for a reasonable hypothesis of prohibited conduct, an onus, in those circumstances, falls upon the respondent to prove that the alleged prohibited reason was not in fact a reason.
336 Notwithstanding the inferences drawn from the evidence concerning the picketers and the failure to answer evidence against Mr Johnson, the statement of principle at [109] seems to have been put by their Honours as a matter of broad principle, namely, it (s 298V) 'enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise'. In the context of the specific question of 'interlocutory relief', their Honours said at [113]:
'Section 298V of the Act, having regard to the allegations in the proceedings and the state of the evidence, provides sufficient proof of a prohibited reason for the purpose of interlocutory relief. The evidence relied upon by David's was not of sufficient weight to deprive the NUW of the benefit of the presumption in the proceedings before North J.'
337 In any event, in this case, there is a long history of engagement between the employees in contention here and Mr Ramsey concerning their dissatisfaction with working conditions, the operation of the AWAs, the intervention of the AMIEU in a process of agitation to secure a set of conditions perceived to be more favourable and a pattern of discontent with or hostility towards the union. Mr Ramsey has chosen not to give any evidence on any of these matters or to answer directly, from his own knowledge, the allegations of prohibited reasons for the identified conduct. To the extent that the section operates upon some evidence of a reasonable hypothesis, inferences are open unrebutted of an hypothesis consistent with the allegations made by the applicant.
338 There is no doubt the applicant has the onus of establishing the causes of action on the balance of probabilities but s 298V effects a discharge of that onus once the relevant conduct is proven and the allegation of a prohibited reason made. Although the respondents rely upon observations of Ryan J in Transport Workers' Union v De Vito (2002) 140 IR 33 at 40, his Honour was simply observing that when the conduct itself is put in issue, the applicant has an evidentiary onus of establishing that matter before the respondent is called upon to satisfy an onus of proving a reason other than the alleged prohibited reason. The two classes of conduct asserted here are 'dismissing an employee' and 'refusing to employ another person'. It may be that the content of other classes of conduct, 'altering the position of an employee to the employee's prejudice' or 'discriminating against another person in the terms or conditions of an offer of employment', require greater forensic evidence of the character of the conduct before an onus as to a prohibited reason falls to the respondent. In any event, that is not the case here.
339 The respondents rely upon the observations of both Barwick CJ (in dissent) and Mason J (in the majority) in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605. In that case, GMH dismissed an employee who was a member and delegate of the relevant union, on the articulated basis of the employee's unsatisfactory attitude to work and supervision. Section 5(1) of the Conciliation and Arbitration Act 1904-1976 (Cth) prohibited GMH from dismissing Bowling by reason of his being a member or delegate of the union. The majority of the industrial court convicted GMH of dismissing Bowling by reason of his position as a delegate. In considering the onus provision in GMH's appeal, Barwick CJ at 611 said this:
'I now turn to s 5(4) and the use which may properly be made of it. The precise terms of that subsection are:-
"s.5(4) In any proceeding for an offence against this 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 he was not actuated by the reason alleged in the charge."
It is a little difficult to state what are the element of the offence against s 5(1)(a) other than the reasons for the appellant's action: but, presumably, if effect is to be given to the provision, the dismissal itself is the other, and indeed the only other, element of the offence.
In my opinion, before resort can be had to this onus provision, there must be before the court evidence which reasonably warrants the conclusion that the circumstance that the employee had been placed in the appropriate office of his union was possibly a reason for his dismissal. If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason.'
340 Accordingly, the respondents here say that there must first be some evidence that the reason alleged was 'possibly a reason' and if there is 'no basis' for concluding that the particular circumstance might have been a reason, the onus of demonstrating otherwise does not arise. Two things should be noted. First, this is nevertheless a slight basis for enlivening the operation of the respondents' onus and, secondly, the reason in question had to be a 'substantial and operative reason'. A requirement to demonstrate some evidence of such a circumstance before enlivening the respondents' onus is neither surprising in the context of a requirement to demonstrate a substantial and operative reason nor applicable to a position where the question is whether the prohibited reason was simply a reason for the conduct.
341 Mason J put the matter this way at pg 617:
'Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant.'
342 Therefore, it is said, consistent with the views of Barwick CJ and Mason J, the applicant must adduce evidence 'consistent with the hypothesis' that the respondents were actuated by a prohibited reason. It seems to me that the hypothesis is the allegation and the evidence is consistent with it. However, his Honour, Mason J, also said at pg 617:
'To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the main purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.'
343 The notion that evidence must be consistent with a hypothesis and the recognition that the statutory objective is to place the onus on the defendant in respect of those matters peculiarly within his own knowledge, seems to me to not require actual evidence of purpose on the part of the applicant.
344 It should also be remembered that s 298K(1) has effected a change in the law put this way by Nicolson J in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 69: 'In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change in the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" - that is it would have to be a reason'. That passagehas been approved by Goldberg J in Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 and Weinberg J in NUW v Qenos (supra) at [57] and [58].
345 Reliance is also placed on the judgment of the Full Court of the Federal Court in BHP Iron-Ore Pty Ltd v Australian Workers' Union & Ors (2000) 102 FCR 97. In so doing, the respondents press their contention that some element of discriminatory conduct must be demonstrated (as an additional element of the section), not merely conduct coupled with an allegation of a prohibited reason, there must be some evidence consistent with the discriminatory hypothesis and the conduct must be intentional conduct directed to 'an employee' or 'other person'.
346 At pg 108, their Honours Black CJ, Beaumont and Ryan JJ made this observation:
'It has to be borne in mind, in construing s 298K, that it proscribes conduct by "an employer" directed to "an employee" or "other person". That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used). It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: "dismiss", "injure", "alter the position", "refuse to employ" and "discriminate". That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.'
347 There must be, therefore, it is said, some demonstrated element of 'singling out' of an employee or if a class of employees is involved, the class must be singled out for special treatment as a class: Health Services Union of Australia v Tasmania (1996) 73 IR 140, per Marshall J; and Maritime Union of Australia v Geraldton Port Authority (supra). In Health Services, the actual conduct of singling out a union member for denial of a wage increase was held to constitute an 'injury' for the purposes of s 298K(1)(b) and in MUA v Geraldton Port Authority, an offer made to all employees in the relevant class of a redundancy package did not constitute an injury or a threat to injure an employee for the purposes of s 298K(1)(b) but simply an offer open to acceptance or rejection.
348 There can be no doubt that s 298K(1) addresses, consistent with the Full Court's observations in BHP Iron-Ore Pty Ltd v Australian Workers' Union & Ors (supra), bilateral conduct between an employer and an employee or an employer and another person. That simply means however that the circumstances of the conduct (dismissal, injury, alternation of position, refusal to employ or discrimination in terms and conditions of that offer of employment), affecting each individual must be examined to determine whether the conduct was undertaken for a prohibited reason. If the expression of the conduct involves a group of affected individuals, the circumstances of each individual within the group must be examined. The broader the group, the less likely as a matter of logic and probability that individuals within it are the subject of prohibited reasons for the conduct. A group of individuals will generally exhibit a unifying characteristic that defines the boundaries of the group and it may well be that that characteristic provides an explanation of the reason for the conduct affecting the group. Nevertheless, individuals within the group, upon examination, may on a bilateral basis, be the subject of conduct for a reason prohibited by the Act, as alleged. In other words, the dismissal of 50 employees would not provide an answer to a contravention of s 298K(1)(a) if 12 of those 50 were dismissed because they elected to take up membership of a union, act as a delegate, express dissatisfaction with conditions of employment supported by the union, or secured an order of the AIRC to address constructive dismissal in harsh and unjust circumstances. The question is always what was the conduct of the employer qua the employee, in the circumstances? In many cases, where a broader group or class is the subject of the conduct, the employer will be in a position, and uniquely so, to demonstrate persuasively that the circumstances affecting the group reflect a level of abstraction that removes qua any member, a circumstance constituting a prohibited reason. Although the section requires an analysis of the bilateral circumstances between the employer and the individual, conduct applying to a group does not, by that circumstance alone, extinguish any operation for the section. Justice Kenny put the notion slightly differently but to the same effect when her Honour said in Australian Workers' Union and Others v BHP Iron-Ore Pty Ltd [2001] FCA 3 at [53] upon remitter from the Full Court:
'Section 298K(1) is, upon this view, concerned with the conduct of an employer that is directed to an individual employee. This does not mean that in dismissing one employee who is a union member for a prohibited reason, an employer commits a civil wrong, and that wrong is not committed if, for the same reason, the employer dismisses all employees who are union members. The Full Court was directing its attention to the nature of the injury contemplated by the provision. That is, the conduct in question must injure an employee individually in the sense that it would have injured him or her, regardless of whether it was actually done to an individual employee or a group of employees. The relevant inquiry is whether an employer has, by the employers conduct, injured the position of an employee individually. The Full Court must have intended to exclude conduct that injured individuals only when directed to a class of employees. Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur.' (emphasis added)
349 In AWU v BHP (supra), the contention was that the position of the relevant employees had been altered to their prejudice. As in the case of an injury to an employee in his or her employment, an assessment of the threshold conduct calls for a comparison between the position of the employee in the circumstances prevailing before the acts of intervention by the employer and the position subsisting after those acts to determine the nature of the injury or the prejudicial alteration. If those acts occurred for a prohibited reason, a contravention of s 298K(1) arises. The conduct of dismissing an employee or refusing to employ another person does not call for such a detailed comparative forensic inquiry before conduct falling within s 298K(1) arises. In this case, the contention is that a number of individuals were placed in a worse position by reason of the intentional acts of the employer than before those acts occurred. Some individuals within the cohort of employees dismissed by the employer may not have been placed in a worse position by reason of their re-engagement quite quickly after the dismissal conduct. Others contend they were dismissed for a prohibited reason which endured into the conduct of a refusal to employ and the prejudicial deterioration of the position of each individual, examined separately, is caused by those acts.
350 Mr Hatcher contends that all employees at the abattoir were 'indiscriminately terminated'. In a sense, that submission swears the issue because the character of the discrimination lies in the question of whether dismissal occurred for the prohibited reason. No attempt has been made by Mr Ramsey or the respondents to adduce evidence demonstrating that the alleged reason was not the reason. The respondents rely upon the cross-examination of Mr Davis and the affidavit of Mr Brown to demonstrate that re-engagement was occurring almost immediately after the dismissals, that individuals received phone calls, some were available for work, others not and that no differentiation occurred between individuals offered employment. The evidence, does not establish those matters. That evidence could have come from Mr Ramsey but he chose not to adduce it.
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.'
352 This passage is said to reflect the criticality of differential treatment. The passage, however, simply recognises that since all employees were required to be a member of the Union, there was no point in the respondent seeking to exclude Union membership. In NUW v Qenos, Weinberg J considered a proposal by an employer to undertake a "spill and fill" process to select those operators at particular manufacturing plants for retrenchment and whether adoption of a process of including all of Plant A's employees in the pool of retrenchment candidates involved a threat of dismissal, injury to employees in their employment or an alteration of their position to their prejudice. The respondents rely upon these passages of his Honour's judgment at [118] and [120]:
'I consider that the applicant's claim that the respondent has contravened s 298K is largely misconceived. In BHP Iron-Ore Pty Ltd v Australian Workers' Union the Full Court determined that the reach of s 298K is limited in that it proscribes conduct which is directed to an individual employee or prospective employee, and not conduct directed to a broad class of employees. That decision is binding upon me.
In the same way, I am not persuaded that conduct of this nature is capable of giving rise to an injury to any particular employee in his or her employment, or there can be said prejudicially to have altered the position of any individual employee.'
353 Those observations seem to me to represent a different application of BHP v AWU (supra) to that identified by Kenny J in the sense that although both Weinberg J and Kenny J recognise the bilateral focus of the provisions, the expression of proscribed conduct directed to an employee may nevertheless be found in conduct directed to a group of employees "in the sense that it would have injured him or her regardless of whether it was actually done to an individual employee or a group of employees": Kenny J at [53].
354 Weinberg J recognises at [121] and [122] the susceptibility of what I might call distributed conduct (and not merely bilateral conduct) to the reach of s 298K, illustrated in the circumstances of Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (supra). His Honour said this:
'There, the conduct impugned was a decision by the employers to dismiss all members of the MUA in their employ, and to ensure that no funds were available to meet the legal obligations owed to those employees.
It is one thing for an employer to decide to dismiss all the employees forthwith because of their membership of a particular union. That conduct falls squarely within s 298K. It is conduct which is directed to individual employees in the sense spoken of by the Full Court in BHP Iron-ore Pty Ltd v Australian Workers' Union, albeit all individual employees.'
355 His Honour concluded that the "spill and fill" proposal for the selection of certain employees within a group for involuntary redundancy was not "sufficiently proximate" to any of the forms of contravening conduct contained within s 298K. Dismissal of all employees for a prohibited reason is squarely within s 298K notwithstanding that they represent potentially a large group. Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost. The question is whether the conduct, from the standpoint of the individual, notwithstanding others, represents conduct carried out for a prohibited purpose. It seems to me that the observations of Gray J in Employment Advocate v Williamson (2001) 111 FCR 1 at [23]:
'What is clear, however, is that for a contravention of s 298K to occur, there must be a person or persons who fall within the description in one or more of the prohibitive reasons.'