Why does the reverse onus not give the complainant an unfair advantage?

Here’s some comments I wrote in 2009, comparing the reverse onus in the (then new) Fair Work Act and its predecessor provision in the Workplace Relations Act, with the current situation for discrimination claims.

The current section 809, in relation to freedom of association, and section 664, in relation to unlawful termination, of the Workplace Relations Act, effectively shift the burden of proof to (for the purposes of our discussions) the employer, by including a presumption that the conduct (ie the termination or relevant freedom of association conduct) was carried out for a proscribed or prohibited reason.

The Fair Work Act contains a similar presumption in the General Protections Part …

The Act, by that provision, puts the onus on the employer to prove the reasons for the action did not include a discriminatory reason. A mere denial may not be sufficient.[1]

The employer has to prove that to the civil standard. That is they have to prove that on the balance of probabilities, the discriminatory reason was not one of the reasons for the adverse action.[2]

This ‘reverse onus’ goes some way to mitigating the difficulty faced by the complainant.

The employer will usually be better placed to lead direct evidence about the reasons for the adverse action. As has been recognised, this is something peculiarly within the knowledge of the employer.[3]

The employee’s evidence will be about what the employer purported to be the reasons for the adverse action, and also, and generally more importantly, about facts and circumstances that cast doubt on any assertion by the employer that the reasons did not include a discriminatory reason.[4]

In the absence of the reverse onus, the employee would be at a very significant disadvantage. The reverse onus goes some way to redressing that imbalance.

The operation of the reverse onus is considered in Galvin v Renito Pty Ltd.[5] In that case Ryan JR applied the reasoning of Moore J in Stojanovic -v- The Commonwealth Club Ltd[6] to the operation of the then s 170CK of the Workplace Relations Act:

28 His Honor adopted a formulation of the onus on the employer approved by the High Court of Australia in General Motors Holden Pty Ltd -v- Bowling[7] and expressed by Mason J when addressing s5(4) of the Conciliation and Arbitration Act 1904, an earlier predecessor s170DF and s170CK. At 617 Mason J referred to the onus on the employer of establishing affirmatively that it was not actuated by the reason alleged in that case in the charge laid under s5. He held that the consequence was that the employee, in order to succeed, was not bound to adduce evidence that the employer was actuated by that reason, a matter peculiarly within the knowledge of the employer. He found the employee was entitled to succeed if the evidence was consistent with the hypothesis that the employer was so actuated and that hypothesis was not displaced by the employer. He said:

“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 plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”

In Greater Dandenong  City Council v Australian Municipal, Clerical and Services Union,[8] in dissent, Finkelstein J[9] expressed the view that the presumption in the predecessor to new s 361 did not arise where there is sufficient evidence to enable the court to make a positive finding whether conduct has been carried out for the alleged reason or with the alleged intent. This seems consistent with the general approach to the ‘reverse onus’. It is a presumption that arises if the claimant’s evidence doesn’t establish a positive case.

As earlier commented, this reverse onus seems to go some way to redressing the imbalance that inevitably arises in a case directed towards establishing the reason or reasons for particular conduct.

In contrast to the foregoing, there is generally no similar presumption in anti-discrimination legislation. (Save that in cases of indirect discrimination, if the respondent says that the discriminatory term is reasonable, it is for the respondent to prove that reasonableness.)

This is an important difference between the two types of claims. A complainant in an anti-discrimination legislation claim would have to demonstrate that the reasons for the less favourable treatment include the attribute, and that is of course fairly difficult. It necessarily relies on evidence as to the facts and circumstances which support the proposition that the conduct was because of the attribute. In contrast under the new Fair Work Act, it will be for the employer to prove that its reasons did not include a discriminatory reason.

…  a complainant may find a claim under the Fair Work Act less onerous because of the presumption in their favour and the absence of the statutory requirement to point to the treatment that would have been afforded to a hypothetical comparator.

However, in could be argued that there will be little practical difference in running the employee’s case because:

a)    notwithstanding the reverse onus, the complainant will usually have to bring evidence to contradict the employer’s evidence as to the reasons for the adverse action – that is, if the employer leads evidence that the reasons were other reasons, which did not include sex / race / age / disability etc, then that evidence, if uncontested or if otherwise accepted, would likely discharge their onus and the employee’s claim will fail;

[1] Johns v Gunns Ltd (1995) 60 IR 258

[2] Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191

[3] General Motors Holden Pty Ltd -v- Bowling, referred to below

[4] Heidt v Chrysler Australia Ltd (1976) 26 FLR 257

[5][1999] FCA 1005

[6] (Industrial Relations Court of Australia, unreported, 8 December 1995)

[7] (1976) 12 ALR 605

[8]  [2001] FCA 349 (4 April 2001)

[9] At paragraph 219


Gender equality at work

Here’s the EOWA media release on the new legislation passed yesterday:

“The Workplace Gender Equality Act 2012, passed by federal parliament last night (22 November) is a landmark development on the journey to gender equality in Australian workplaces.

The Act is a significant advance on its predecessor, the Equal Opportunity for Women in the Workplace Act 1999, shifting the focus from equal opportunity for women to gender equality, which is more contemporary and relevant. The Equal Opportunity for Women in the Workplace Agency will be renamed the Workplace Gender Equality Agency reflecting this change in focus.

Helen Conway, Director of the Equal Opportunity for Women in the Workplace Agency says “the changes will increase Australia’s productivity and improve business performance by empowering organisations to harness all of the nation’s talent.”

Under the Act, non-public sector organisations with 100 or more employees will report on actual gender equality outcomes, and provide the Workplace Gender Equality Agency with standardised data.

“This data will put Australia at the international cutting edge for analysing progress on workplace gender equality. The Agency will use the data to set industry-specific benchmarks. Employers will be able to compare their performance with others in their industry and we’ll work with organisations to develop strategies to improve their performance,” Ms Conway says.

“These benchmarks will also help organisations set voluntary targets on gender equality – something I strongly encourage. As with any business initiative, the best way to drive change is to set clear objectives and reward managers for achieving them.”

The legislation also focuses on eliminating discrimination on the grounds of gender in relation to family and caring responsibilities.

“The Act recognises that the days when women did all the caring and men were the sole breadwinners are long gone. It’s time workplace practices caught up with the way we live today,” Ms Conway says.

2013 will be a transitional year giving employers time to prepare for the new reporting arrangements that will be fully operational from 2014.

“There is a strong business case for gender equality but we recognise that many organisations struggle to achieve it. We are absolutely committed to working collaboratively with employers to help them bring gender equality to their workplaces,” Ms Conway says.

“The Act will enable our Agency to measure how far Australian employers have come but, more importantly, determine where there is more work to be done and where the Workplace Gender Equality Agency can help.””


JW Howard, then PM, and the reverse onus

Yesterday’s opinion piece in the Australian (20 November, 2012), about the new consolidated federal discrimination laws, made clear the author’s outrage about the introduction of a reverse onus in discrimination cases.

Complainants will need to show that they were treated unfavourably, and then respondents will have to show that the reasons for the unfavourable treatment did not include unlawfully discriminatory reasons.

This brings the anti-discrimination laws into sync with the Fair Work Act general protections (formerly freedom of association) provisions.

The Workplace Relations Act 1996, a JW Howard flagship piece of legislation, provided for the reverse onus in section 298U. At the time, there was no broad protection against discrimination (there was a narrower protection from dismissal for discriminatory reasons), but the freedom of association provisions proscribed certain types of conduct taken for prohibited reasons.

Since the introduction of the Fair Work Act, the freedom of association provisions have been rebadged as general protections, and the protection against adverse action for prohibited reasons has been extended so that the prohibited reasons include personal characteristics such as sex, race, sexual preference, etc. The relevant provision is described as a provision about discrimination. The reverse onus is retained in that legislation.

When the Fair Work Act was first introduced there was a lot of commentary about the new discrimination provision. At the time I wrote about why the reverse onus was important, not to give complainants an unfair advantage, but instead to remedy an unfair disadvantage. The extension of the reverse onus to the federal discrimination law is appropriate given the nature of the cause of action – that is, its nature as a cause of action about the reasons why action was taken. (As recently as this year, the difficulties that are involved in determining the reasons why action was taken were the subject of a High Court decision in Barclay v Bendigo Institute of TAFE.)

I made some public comment about this issue in Maurice Blackburn‘s press release yesterday. The Australian Financial Review article, which kindly quoted me, is here.

Update, 22 November: the Australian has quoted me on this topic, here. Unfortunately the article gives the impression that the increase in general protections claims correlates with the introduction of the reverse onus. As I’ve noted above, it has been around more than fifteen years. The general protections provisions are in some ways broader than the previous freedom of association provisions, but the reverse onus is not.