Page:Qantas v Transport Workers Union of Australia.pdf/25

Gordon J

Edelman J Qantas failed to rebut the presumption because its witness evidence on this point was not accepted. Accordingly, Qantas failed to prove that its outsourcing decision was made for reasons not including the substantial and operative reason of preventing the exercise of a workplace right within the meaning of s 341(1)(b) of the Act, which was relevantly the entitlement of the employees affected by the outsourcing decision to engage in enterprise bargaining following the expiry of the enterprise agreements and to organise and engage in protected industrial action and a protected action ballot (in short, "the entitlement to engage in protected industrial action"). On appeal to this Court, Qantas did not challenge the conclusion that it had failed to rebut the presumption that its outsourcing decision was made for reasons that included the prevention of its employees' exercise of an entitlement, in the future, to engage in protected industrial action.

This appeal turns on the proper construction of s 340(1), and, in particular, the term "workplace right". The central issue is the scope of the protection afforded by s 340(1)(b) of the Act against the taking of adverse action to prevent the future exercise of the entitlement to engage in protected industrial action, even where that entitlement is not presently existing. That issue is a question of construction – does s 340(1)(b) of the Act prohibit a person from taking adverse action against another person for the purpose of preventing the exercise of a workplace right when that "right" is not a presently existing right, but is one that might arise in the future? The answer is "yes".

Qantas argued that neither of the groups of affected employees had a relevant workplace right within the meaning of s 341 at the time of the outsourcing decision, and that prevention of the exercise of a workplace right in s 340(1)(b) is concerned only with existing workplace rights. Qantas' contentions, both of which were essential for its success, were that: (1) a workplace right in s 341(1) does not include entitlements and abilities (including contingent entitlements and abilities) to the benefit of things, or to initiate or participate in things, whilst those things are positively prohibited or unlawful; and (2) s 340(1)(b) is concerned only to prohibit adverse action against a person to prevent that person from exercising a presently existing workplace right. As will be explained, the first contention is correct; the second contention is rejected.

"Right" and "entitlement" are used loosely in the Act to include those legal relations that have elsewhere been described as claim rights, powers, privileges and immunities. Nothing in this appeal turns upon the precise legal