Page:Qantas v Transport Workers Union of Australia.pdf/18

Kiefel CJ

Gageler J

Gleeson J

Jagot J

in s 417 against organising or engaging in industrial action when the nominal expiry date of a relevant enterprise agreement has not passed.

Accordingly, it is appropriate to proceed upon the basis that the affected employees did not have relevant workplace rights at the time of the outsourcing decision in respect of the actions that Qantas sought to prevent by that decision, because they were not "entitled to the benefit of … a workplace law" within s 341(1)(a) and they did not have an ability to initiate or participate in protected industrial action or a protected action ballot for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement, or to initiate or participate in enterprise bargaining, within the meaning of s 341(1)(b).

Proscribed adverse action – s 340(1)

Section 340(1) employs the sanctions of civil contravention and penalty for certain types of conduct taken for reasons that are antithetical to the full enjoyment of workplace rights. As a civil penalty provision, it should be "certain and its reach ascertainable by those who are subject to it".

The evident object of s 340(1) is to protect workplace rights by protecting persons from adverse action for specified reasons connected with their holding or exercise of workplace rights. The provision affords scope for lawful adverse action to achieve any number of objectives, provided that the action is not substantively actuated by a purpose or reason inimical to a person holding or exercising workplace rights. Importantly, adverse action will not offend s 340(1) if taken with mere awareness of an effect on another person's workplace rights. Instead, adverse action will only offend the section if it is taken for a proscribed reason: "because" the person against whom it is taken has a workplace right or has (or has not) done something in relation to the exercise of a workplace right within the scope of s 340(1)(a), or "to prevent" the exercise of a workplace right by that person within the scope of s 340(1)(b). As already noted, the proscribed reason must be a substantial and operative reason for taking the adverse action against the other person.

Except for s 340(1)(a)(i), the text of s 340(1) does not require a workplace right to be held or to be capable of immediate exercise by an affected person at the