Gordon J
Edelman J
20.
occur[1] had not been completed at the time of the outsourcing decision. It was relevantly alleged, and found by the primary judge, that the reasons for the adverse action – the outsourcing decision – included to prevent the exercise by employees of their workplace rights in 2021, following the nominal expiry of their enterprise agreements, to: (i) organise and engage in protected industrial action[2] or a protected action ballot[3] for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement; and (ii) participate in enterprise bargaining[4] under the Act.
Section 361 of the Act establishes a rebuttable presumption that the adverse action was taken for the reason alleged, or with the intent alleged, if taking action for that reason or with that intent would constitute a contravention of Pt 3-1 of the Act (which includes s 340). A person takes action for a particular reason if the reasons for the action include that reason[5]. The presumption in s 361 recognises that the decision-maker is uniquely placed to know the reasons for their action and should thus be made to prove them[6]. An employer can discharge that onus by proving that none of its substantial and operative reasons for the adverse action was to prevent the exercise of workplace rights[7].
- ↑ Fair Work Act, ss 437, 438, 443, 449, 459.
- ↑ Fair Work Act, Div 2 of Pt 3-3.
- ↑ Fair Work Act, Div 8 of Pt 3-3.
- ↑ Fair Work Act, Pt 2-4.
- ↑ Fair Work Act, s 360.
- ↑ General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; 12 ALR 605 at 617; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 at 517 [44]–[45], 519–520 [49]–[51], 535–536 [105]–[106]; Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423 at 430–431 [33]–[34].
- ↑ Bowling (1976) 51 ALJR 235 at 238–239, 241–242; 12 ALR 605 at 611–612, 616–617, 619; Barclay [No 1] (2012) 248 CLR 500 at 522 [56], 523 [59], 523 [62], 535 [103]–[104], 542 [127]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at 249 [7]–[9], 252–253 [22], 267 [85], 268–269 [88]–[90]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at 160 [30], 160–161 [32], 169 [75]–[77], 186–187 [166], 191 [190]–[191]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at 281–282 [36]–[37], 301 [130]–[131], 302 [133]–[135].
