Page:Qantas v Transport Workers Union of Australia.pdf/17

Kiefel CJ

Gageler J

Gleeson J

Jagot J of s 341(1)(a) is confirmed by the Explanatory Memorandum, which states that "[a] benefit under a workplace law or workplace instrument is also intended to include benefits that are contingent or accruing (eg, long service leave)".

The words "is able to" in s 341(1)(b) and (c), while not words of limitation, necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).

There is no reason in principle why a workplace right that a person has under s 341(1)(a) cannot overlap with a workplace right that the person has or might have in the future under s 341(1)(b) or (c). In particular, there is no reason in principle why the benefit of the statutory immunity in relation to protected industrial action that a person contingently has under s 415 is not a workplace right that the person has under s 341(1)(a) even before circumstances have come into existence in which the person has a present power or freedom to engage in protected industrial action so as to give that person an additional right under s 341(1)(b).

This said, there is a difference between a case where the capacity of a person to exercise the workplace right depends on temporal and circumstantial contingencies and a case where the exercise of the purported workplace right is prohibited or would expose the person to legal process to prevent the exercise of that purported right. In the former case, it may be said that the person "has" the workplace right, albeit that the right is not presently exercisable. In the latter case, it cannot be said that the person "has" the workplace right at all. Notwithstanding that s 341(1)(a) covers benefits that are contingent or accruing, it would unduly strain the meaning of s 341(1)(a) to posit that a person "has" a workplace right comprising an entitlement to the benefit of the statutory immunity in relation to protected industrial action in s 415 of the Act in the face of the statutory prohibition