Page:Qantas v Transport Workers Union of Australia.pdf/16

Kiefel CJ

Gageler J

Gleeson J

Jagot J

definition of "workplace right" in the sense that it cannot be said that s 341 merely "shortens, but is part of, the text of the substantive enactment to which it applies". Quite apart from the awkwardness of attempting to read s 341(1) into the text of s 340, ss 343 and 345 would both be deprived of meaningful operation were s 341(1) to be read in that way. Rather, s 341 identifies as a matter of substance that a person has a workplace right in specified circumstances.

Section 341(1) uses the present tense to describe when a person "has" a workplace right. Whether a person has a "workplace right" under s 341 is determined by their present entitlements or role or responsibilities (under s 341(1)(a)) or abilities (under s 341(1)(b) and (c)).

The reference in s 341(1)(a) to a person having a workplace right if the person is entitled to the benefit of a workplace law or workplace instrument is sufficiently broad to encompass a present entitlement under a workplace law or workplace instrument to receive a benefit at some future stage of the employment relationship on the occurrence of an expected event or on the occurrence of a contingency. In this way, s 341(1)(a) has a forward-looking dimension. For example, s 108 provides that an employee who engages in an eligible community service activity, such as jury service or volunteer bushfire fighting, "is entitled to be absent from his or her employment" in certain circumstances. An employee "has" a workplace right in the nature of an entitlement to the benefit of s 108, although the circumstances for asserting that entitlement have not arisen and may never arise.

Thus, a person can have a workplace right, comprising an entitlement to the benefit of a workplace law or workplace instrument, within s 341(1)(a), even though the person's capacity to exercise the workplace right may depend on accrual over time or on the occurrence of a future event or contingency. The broad scope