Page:Qantas v Transport Workers Union of Australia.pdf/23

Gordon J

Edelman J GORDON AND EDELMAN JJ. The facts and statutory framework are set out in the reasons of other members of the Court. We gratefully adopt them. We agree that the appeal should be dismissed and that it is unnecessary to consider the respondent's notice of contention or proposed cross-appeal. We would express our reasons for dismissing the appeal in the following way.

Section 340(1)(b) of the Fair Work Act 2009 (Cth) provides that a person must not take "adverse action against another person … to prevent the exercise of a workplace right by the other person" (emphasis added). "[A]dverse action" is defined in s 342 of the Act and includes an employer "alter[ing] the position of the employee to the employee's prejudice". The meaning of "workplace right" is set out in s 341 of the Act. A person has a workplace right "if the person … is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument". A "process or proceedings" includes "protected industrial action" and "a protected action ballot".

It is not in contention that Qantas took adverse action against the affected employees in deciding on 30 November 2020 to outsource ground handling operations work at ten Australian airports ("the outsourcing decision"). It is also not in contention that all affected employees were entitled to the benefit of a workplace instrument, being an enterprise agreement made under the Act.

There were two groups of Qantas employees affected by the outsourcing decision. The nominal expiry date of the applicable enterprise agreement had passed for Qantas Ground Services Pty Ltd employees, but not for Qantas Airways Ltd employees. The Qantas Airways Ltd employees were therefore prohibited from taking industrial action given their enterprise agreement remained on foot, and, although the nominal expiry date of the Qantas Ground Services Pty Ltd employees' enterprise agreement had passed, protected industrial action by those employees could not be taken as the necessary procedural steps to enable that to