Page:Qantas v Transport Workers Union of Australia.pdf/24

Gordon J

Edelman J

occur had not been completed at the time of the outsourcing decision. It was relevantly alleged, and found by the primary judge, that the reasons for the adverse action – the outsourcing decision – included to prevent the exercise by employees of their workplace rights in 2021, following the nominal expiry of their enterprise agreements, to: (i) organise and engage in protected industrial action or a protected action ballot for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement; and (ii) participate in enterprise bargaining under the Act.

Section 361 of the Act establishes a rebuttable presumption that the adverse action was taken for the reason alleged, or with the intent alleged, if taking action for that reason or with that intent would constitute a contravention of Pt 3-1 of the Act (which includes s 340). A person takes action for a particular reason if the reasons for the action include that reason. The presumption in s 361 recognises that the decision-maker is uniquely placed to know the reasons for their action and should thus be made to prove them. An employer can discharge that onus by proving that none of its substantial and operative reasons for the adverse action was to prevent the exercise of workplace rights.