Transport Workers' Union of Australia v Premier Motor Service Pty Ltd

This decision of the Federal Court of Australia concerned a dispute between the Transport Workers' Union of Australia and Premier Motor Service Pty Ltd. The case involved allegations of adverse action taken against employees for reasons prohibited by the Fair Work Act 2009 (Cth).

The central legal issue before the Court was the proper application of the statutory presumption contained in section 361 of the Fair Work Act. This presumption operates in favour of an applicant alleging adverse action was taken for a prohibited reason, placing the onus on the employer to demonstrate that the action was not taken for such a reason. The Court was required to consider how an employer could discharge this onus, particularly in light of evidence concerning the decision-maker's state of mind and the possibility of multiple reasons for taking adverse action.

The Court's reasoning drew heavily on established High Court authority, including *Barclay*, *General Motors-Holden's Pty Ltd v Bowling*, and *National Tertiary Education Union v Royal Melbourne Institute of Technology*. It affirmed that the employer bears the burden of proving, on the balance of probabilities, that the alleged prohibited reason was not a factor in the adverse action. While direct testimony from the decision-maker can be crucial, it must be reliable and not contradicted by other evidence. The Court emphasised that even if the employer's stated reasons for the action are accepted, they must also establish the absence of any additional or concurrent prohibited reasons to successfully rebut the presumption.