Page:Qantas v Transport Workers Union of Australia.pdf/21

Kiefel CJ

Gageler J

Gleeson J

Jagot J The inclusion of conditional or contingent rights as an element of a proscribed reason does not render s 340(1)(b) uncertain, as Qantas suggested, principally because the section requires the alleged contravener's reasons for the adverse action to be determined. If the alleged reasons involve remote or improbable circumstances, it may be expected that the alleged contravener will readily rebut the presumption in s 361.

Qantas' construction of s 340(1)(b) would leave it with little practical operation beyond s 340(1)(a). On Qantas' construction, s 340(1)(b) would be confined to a case where adverse action taken for a reason of preventing the exercise of a workplace right could not also be characterised as adverse action taken for a reason of having a workplace right. It is difficult to envisage such a case.

Purpose and context of Pt 3-1

Apart from a lack of textual justification for Qantas' construction of s 340(1)(b), its protective purpose, the breadth of the concepts of adverse action and workplace rights in Pt 3-1, and the apparently comprehensive scope of s 340 all point against limiting s 340(1)(b) to the prevention of the exercise of workplace rights in existence at the time of the adverse action.

Qantas argued that s 341(3), and the related provisions in s 341(4) and (5) concerning prospective employees, would be otiose if s 340(1)(b) were construed to include preventing the exercise of a future workplace right. Section 341(3) is a deeming provision applying to adverse action taken because of a workplace right a prospective employee would have if employed. Section 341(3) involves determining what workplace rights the prospective employee would have had if they had been employed. It is not concerned with the case of an existing employee (or another person who is not an employee) who may acquire workplace rights over time.

Broader context of the Act

Qantas next argued that construing s 340(1)(b) as applying to future workplace rights would tend to defeat the legislative choices in other parts of the Act, namely the time limitations placed upon protected industrial action and unfair dismissal rights. In particular, Qantas referred to s 194(c) and (e), which respectively provide that terms of an enterprise agreement are unlawful if they confer any entitlement or remedy in relation to unfair dismissal before the