Page:Qantas v Transport Workers Union of Australia.pdf/19

Kiefel CJ

Gageler J

Gleeson J

Jagot J time of the adverse action. To the contrary, as Qantas accepted, the application of s 340(1)(a)(ii) or (iii) to prohibit adverse action because of conduct concerning workplace rights that a person previously had is not contingent upon the existence of the workplace right at the time of the adverse action.

For s 340(1)(a)(ii) to apply, it is clearly necessary that the affected person had a workplace right at the time of its exercise or non-exercise.

Section 340(1)(a)(iii) is more complex in that its focus is the nature of the affected person's current or past proposal: to exercise or not to exercise a workplace right. It does not specify a temporal relationship between the proposal and the proposed exercise of the workplace right, but applies where the person proposes to exercise a workplace right in the future that they have in the present and where the person proposes to exercise a workplace right in the future that they will only have in the future. In that way, s 340(1)(a)(iii) undoubtedly applies to adverse action taken before, during or after the proposed exercise of a workplace right.

The focus of s 340(1)(b), in prohibiting adverse action "to prevent the exercise of a workplace right", is the future exercise of a workplace right, not the present existence of a workplace right. The words "to prevent", as has been emphasised, are directed to a substantial and operative reason for the taking of the adverse action and mean, in this context, "in order to prevent" or "with a view to preventing". To "prevent" is to preclude the occurrence of an anticipated event or to render the event impractical or impossible by anticipatory action. To "prevent the exercise of a workplace right" encompasses stopping or putting an obstacle in the way of the exercise of a presently held right. But equally, it encompasses putting an obstacle in the way of exercising a right that may arise at some future date.

Why should s 340(1)(b) be construed as applying to adverse action to prevent the future exercise of a presently held workplace right, but not to adverse action to prevent the future exercise of a future workplace right (including, for example, a workplace right which will be held perhaps as soon as the following day)? The answer, according to Qantas, is to be found in a legislative choice, discernible in the context of a plethora of statutory rights under the Act that arise at different times, to protect only rights that a person presently has, as exemplified by the definition in s 341(1) being in the present tense. On analysis of each of