Page:Qantas v Transport Workers Union of Australia.pdf/26

Gordon J

Edelman J

characterisation of these concepts so it is convenient generally to use the language of the Act.

Qantas' first contention

Section 341(1), headed "Meaning of workplace right", provides that:

"A person has a workplace right if the person:

1. is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

2. is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

3. is able to make a complaint or inquiry ..." (emphasis added)

The chapeau refers to a person who "has a workplace right". Section 341(1)(a) to (c) then respectively refer in the present tense to a person who "is entitled to" a particular benefit, or who "is able to initiate, or participate in" a particular action or "is able to make a complaint or inquiry".

Qantas submitted that a workplace right in s 341(1) is concerned, in each of paras (a) to (c), with presently held workplace rights and 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. Qantas argued that, at the time of the outsourcing decision, neither of the groups of affected employees had a presently existing relevant "workplace right" because they were unable to lawfully engage in protected industrial action. The respondent, the Transport Workers Union of Australia, and the Minister for Employment and Workplace Relations (intervening), submitted that the employees had contingent rights to initiate or participate in protected industrial action which were workplace rights within the meaning of s 341(1)(b) of the Act. Qantas' submission on this first contention should be accepted. The text of s 341(1), as well as its context and purpose, compels that conclusion.

It is important to draw a distinction between different forms of workplace rights that give rise to contingent benefits which accrue over time before they can be claimed, and those workplace rights that represent a thing, action or activity that is positively prohibited or unlawful until it can be claimed.