Page:Qantas v Transport Workers Union of Australia.pdf/10

Kiefel CJ

Gageler J

Gleeson J

Jagot J

provisions in Commonwealth industrial legislation that protect workplace participants against unfair treatment. At a high level of generality, the historical arc of the protections against adverse action has generally tended to expand the scope of workplace rights, the classes of persons who are covered by the general workplace protections, and the limits upon adverse action. For example, the current Act is not limited by an equivalent of s 792(4) and (8) of the former Workplace Relations Act 1996 (Cth) which required that, for conduct to contravene the predecessors to the adverse action provisions, the entitlement to the benefit of an industrial instrument must have been the "sole or dominant reason" for the conduct. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) notes that the provisions in Pt 3-1 were "intended to rationalise, but not diminish, existing protections", and that, "[i]n some cases, providing general, more rationalised protections has expanded their scope". It went on to explain that "the new provisions protect persons against a broader range of adverse action". The complex legislative history does not support any narrower reading of s 340(1)(b) than is otherwise suggested by the text, context and purpose of the provision.

The objects of Pt 3-1 relevantly include the protection of workplace rights, and the guide to Pt 3-1 states that Div 3 "protects workplace rights, and the exercise of those rights". The expression "workplace right" is used only in three provisions of Pt 3-1, being ss 340, 343 and 345, and was not used in earlier Commonwealth industrial legislation. Section 341 provides: