Australia, July 10 -- New South Wales Land and Environment Court issued text of the following judgement on June 11:

1. These proceedings concern an application made by Mr Joseph Wright, a member and delegate of Public Service Association and Professional officers Association, Amalgamated Union of NSW (the PSA), alleging unlawful victimisation contrary to s 210 of the Industrial Relations Act 1996.

2. This interlocutory decision disposes of an issue surrounding the admissibility of an affidavit served by the Respondent, that arose at the start of the proceedings.

3. Section 210 relevantly provides "an employer ...must not victimise an employee ...because the person", holds a particular status, or has engaged in particular activities, outlined in subsections 210(1)(a) to (k).

4. Broadly described, to "victimise" an employee is to subject them to a detriment, which is to say, to cause the employee to "...suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to [their] disadvantage in or in relation to his/her employment": Davis v Amalgamated television Services Pty Limited (1998) 81 IR 364 at 381.

5. To be successful, an Applicant in proceedings such as this must satisfy the Commission that at least one of the substantial and operative reasons for the taking of detrimental action was one of the protected characteristics listed in subsections 210(1)(a) to (k).

6. In that connection, subject to satisfying certain matters that need not presently be set out, the Applicant has the benefit of what is commonly referred to as the reverse onus of proof in section 210(2), which relevantly provides:

"In any proceedings under s 213 to enforce the provisions of this section, it is presumed that an employee ... who suffers any detriment as a result of action by the employer ...was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer ... satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action"

7. The Full Bench in Lee v Ausgrid (No 6) (2013) 237 IR 63; [2013] NSWIRComm 62 at [87], observed long ago that:

"Section 210(2) is the legislature's recognition that the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer. Therefore, to avoid liability arising under the provisions of s 210(1) and 213, the employer must negative the statutory presumption that its conduct has been for the reasons condemned by s 210(1). This is not a technical requirement. As was submitted by the appellant, it serves the important public interest of ensuring that justice is done and the legislative prescription is not defeated by the inability of an applicant to adduce evidence upon a central issue".

8. Evidence from the decision maker (or decision makers) as to why detrimental action was taken is, in this context, self-evidently of fundamental importance to the determination of any proceedings under s 213 alleging a contravention of s 210. An illustration can be seen in the observations made by Mason J (with whom Stephen and Jacobs JJ agreed) in

General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 (dealing with an historical analogue of ss 210 and 213 of the IR Act in section 5 of the Conciliation and Arbitration Act 1904 (Cth)), where his Honour observed (at 242), absent evidence from the decision makers, the employer in that case had "left uncontroverted the possibility that the respondent's position as a shop steward was an influential, perhaps even a decisive, consideration in [the decision makers] minds".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19767835727c20e67378c3c4)

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