Page:Qantas v Transport Workers Union of Australia.pdf/29

Gordon J

Edelman J Unlike s 341, which identifies what is a workplace right, s 340 is in a different form and has a different purpose. Section 340 is headed "Protection".

Section 340(1) provides that:

"A person must not take adverse action against another person:

(a) because the other person:

1. has a workplace right; or

2. has, or has not, exercised a workplace right; or

3. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person." (emphasis added)

The relationship between s 340 and s 341 is important. Section 341 enacts substantive law. It is not a mere drafting device that is designed to shorten the length of s 340. None of the sub-sections of s 341 is apt to be transplanted into s 340. There is substantive and independent content to each sub-section of s 341: the meaning of a "workplace right" in s 341(1); the examples of processes or proceedings under a workplace law or workplace instrument in s 341(2); the deeming provision in s 341(3) with respect to prospective employees; and the exceptions with respect to prospective employees in s 341(4) and (5).

In this respect, s 341 contrasts starkly with a definition section as that concept is properly understood. True definition sections are a drafting device. They "are not provisions with any operative effect; they simply provide an aid to the construction of the substantive provisions in an Act". The "function of a definition is not to enact substantive law" but to "shorten[] … the text of the substantive enactment to which it applies". Hence, the only proper course with a definition section is to "read the words of the definition into the substantive enactment and then construe the substantive enactment". Section 341 is not a definition section. It is not to be read into the words of s 340.

Accordingly, in the structure and hierarchy of the provisions, s 341 identifies what is a workplace right, and then s 340, in setting out the