Page:Qantas v Transport Workers Union of Australia.pdf/15

Kiefel CJ

Gageler J

Gleeson J

Jagot J Qantas' case

As has been noted, Qantas presented its argument on this appeal by reference to two contentions: one broader and the other narrower.

Qantas' broader contention was that s 340(1)(b) applies only where there is a workplace right "presently in existence", that is, where a person has a workplace right within the meaning of s 341(1) at the time of the adverse action. According to Qantas, where the "entire existence" of the right is "time-bound" in that it depends upon circumstances, such as the phase of the employment relationship or whether particular events occur, then the right is not protected by s 340(1)(b) before it comes into existence.

Qantas' narrower contention was that an employer does not contravene s 340(1)(b) merely because a reason for the timing of adverse action is "to take advantage of an architectural feature of the Act which positively denies to the TWU and employees the right to oppose the decision by industrial action, a denial which delay might reverse". According to Qantas, such a reason does not involve "prevention" of the exercise of a workplace right for the purposes of s 340(1)(b).

Amalgamating the two contentions, Qantas framed the issue on the appeal as whether s 340(1)(b) can apply to a decision to terminate an employee at a time when the employee does not have a workplace right as defined in s 341, but with an appreciation that to defer the decision may mean that, at a future time, the employee may have a workplace right which might be used to resist termination.

This framing is flawed in two ways. First, it mistakenly implies that a mere "appreciation" of the possible future exercise of a workplace right at the time of taking adverse action would amount to a substantial and operative reason for taking adverse action. Second, it denies the additional reasons for the outsourcing decision the subject of the appeal, which go beyond both an appreciation of a possible effect of the outsourcing decision and a belief as to the possible existence of workplace rights in the future. These flaws demonstrate the importance for the correct application of s 340 of a careful identification of the true reasons for adverse action that is alleged to contravene s 340.

"Workplace rights"

The concept of a workplace right is central to the operation of Div 3 of Pt 3-1 and, within Div 3, to the operation of s 340(1)(b). Section 341(1) is not a