Page:Qantas v Transport Workers Union of Australia.pdf/22

Kiefel CJ

Gageler J

Gleeson J

Jagot J

employee has completed the minimum employment period under the Act or if they are inconsistent with a provision of Pt 3-3 (which deals with industrial action). Section 194 and the various protections conferred on employers by ss 417 and 418, subject to the other preconditions to protected industrial action, operate independently of s 340 as exemplified by the facts in this appeal.

As to the unfair dismissal provisions, it is not self-evident that the balance struck in Pt 3-2 is independent of other parts of the Act. Parts 3-1 and 3-2 serve different purposes and are attended by different legal tests. By including dismissal of an employee within the scope of adverse action, Parliament has made a policy choice that forms part of the balance struck by Pt 3-2.

The Act also plainly envisages that Pt 3-2 is not a code for dealing with conduct that falls within its terms. To the contrary, the potential for overlapping claims under the Act is explicitly recognised and addressed in Div 3 of Pt 6-1, which is entitled "Preventing multiple actions". The general rule is that a person who has been dismissed must not make an application or complaint of a kind referred to in any one of ss 726 to 732 in relation to the dismissal if any other of those sections applies. Section 728 addresses general protections court applications, that is, applications to a court for orders in relation to a contravention of Pt 3-1, and s 729 addresses applications under s 394(1) for a remedy for unfair dismissal. This speaks against Qantas' argument of incoherence in the possibility of a contravention of s 340(1)(b) notwithstanding an absence of available relief under the unfair dismissal regime in Pt 3-2.

Conclusion

Qantas' construction of s 340(1)(b) must be rejected. The readily ascertainable meaning of s 340(1)(b) is to proscribe the taking of adverse action against another person if a substantial and operative reason for the action is to prevent the other person exercising a presently held or future workplace right.

The appeal should be dismissed.