Page:Qantas v Transport Workers Union of Australia.pdf/20

Kiefel CJ

Gageler J

Gleeson J

Jagot J

Qantas' arguments as to the proper construction of s 340(1)(b), no such legislative choice is apparent.

The text

Qantas' primary argument involved treating s 341(1) as if it were a definition so as to confine the operation of s 340(1)(b) by adding to the content of the proscribed reason a temporal relationship between the relevant workplace right and the adverse action. However, when s 341(1) is read as a substantive statement identifying when a person has a workplace right (rather than as a definition of a "workplace right"), no such temporal confinement appears.

Qantas next argued that the workplace right referred to in s 340(1)(b) must be a right which a person presently has within s 341(1) because any other construction would give primacy to s 340(1)(b), which should be understood as complementary to s 340(1)(a). This argument must be rejected. There is no principle of statutory interpretation that requires s 340(1)(a) to be treated as the primary proscribed reason and s 340(1)(b) as merely complementary to it because it follows after s 340(1)(a). Any breach of s 340 is liable to attract the same penalty and the same forms of relief.

Qantas also submitted that construing s 340(1)(b) to apply to adverse action to prevent the exercise of future workplace rights would make it easier to prove a contravention of s 340(1)(b) than of s 340(1)(a) because, for s 340(1)(b), it would not be necessary to prove the existence of an affected workplace right. Again, this submission lacks a principled basis. In any event, the primary concern of s 340(1) is the substantial and operative reasons of the person who takes the adverse action. What is required to be proved is the state of mind of the alleged contravener. On this appeal, it was not in issue that Qantas contemplated or knew that the affected employees would have the workplace rights in 2021 and Qantas had not disproved that this was a substantial and operative reason for the outsourcing decision. Accordingly, it is not necessary to address Qantas' argument of suggested unfairness that s 361 might be invoked to cast the burden of disproof upon the alleged contravener by nothing more than an allegation of a proscribed reason without proof of objective facts that would make such a reason a plausible one.