Page:Qantas v Transport Workers Union of Australia.pdf/30

Gordon J

Edelman J

protections against the taking of adverse action, provides the bases upon which the protection of those workplace rights operates. And those bases are temporal in nature. That is, the fact that the paragraphs of s 341(1) are expressed in the present tense is of no moment in the application of the prohibition contained in s 340. The reference to the structure and hierarchy of the provisions is important. As we have said, s 341 does not control the bases on which s 340 operates.

This appeal is concerned with s 340(1)(b). The question is whether that provision extends to prevent the exercise of a workplace right if that right is one which might exist in the future. The answer is "yes". The text "to prevent the exercise of a workplace right" extends to the prevention of the future exercise of a workplace right by a person. It is necessarily concerned with obstruction of an exercise of a workplace right that might occur in the future. Section 340(1)(b) applies where the workplace right that would be exercised in the future presently exists. But, equally on a plain reading of the paragraph, it applies to workplace rights that might be exercised in the future after they come into existence and are therefore not presently existing.

Supporting that construction, as a matter of immediate context, s 340(1)(b) is to be contrasted with s 340(1)(a). Section 340(1)(a) applies where the adverse action is taken "because", among other things, the person has a workplace right, has exercised a workplace right, or proposes, or has at any time proposed, to exercise a workplace right. Section 340(1)(a)(i) is directed to the present. Section 340(1)(a)(ii) is directed to the past. Section 340(1)(a)(iii) is directed to the act of proposing to do or not to do something, whether in the past or in the present.

Section 340(1)(b), on the other hand, is directed to adverse action taken to prevent the exercise of a workplace right. It is directed to, and concerned with, different temporal aspects of the interaction between a person and another person, and between that other person and a workplace right. It concerns what might be described as a pre-emptive strike by one person against another person so as to deny the second person the ability or opportunity to exercise a workplace right in the future. Put in different terms, the person to whom the protection in s 340(1)(b) is addressed is a person who need not be doing, have done, or propose to do, anything at all.

Qantas contended that construing s 340(1)(b) as a provision that extends to workplace rights that might exist in the future would invert the natural reading of s 340(1) and give primacy to s 340(1)(b) over s 340(1)(a). That submission must be rejected. As is self-evident, s 340(1)(a) and (b) are complementary. Similarly, Qantas' contention that construing s 340(1)(b) in that way would make a contravention of that sub-section easier to prove than under s 340(1)(a) is also rejected. That contention fails to take account of the fact that the Act – s 361 read with s 340 – establishes a rebuttable presumption that adverse action is taken for