Page:Qantas v Transport Workers Union of Australia.pdf/31

Gordon J

Edelman J the reason alleged, or with the intent alleged, if taking that action for that reason or with that intent would constitute a contravention of s 340. As explained, this presumption recognises that the alleged contravener is uniquely placed to know the reasons for their action. That is, the Act is concerned with the alleged reason or intent and then whether the alleged contravener can prove that none of their substantial and operative reasons for the adverse action was of the kind alleged. The present case is instructive. The central issue was whether Qantas could prove that the outsourcing decision was made for reasons not including the substantial and operative reason of preventing the affected employees from exercising an entitlement to engage in protected industrial action. Qantas was uniquely placed to know the reasons for the outsourcing decision and to put on evidence to address the allegation that it was made to prevent the exercise by the affected employees of workplace rights. Qantas' evidence on that point was not accepted by the primary judge.

If Qantas' second contention were accepted there would be a considerable gap in the protection afforded by s 340. The gap would not be as big as the Full Court suggested because, as has been explained, benefits such as annual leave and paid personal/carer's leave can be interpreted, consistently with their express terms, as presently existing, but contingent, entitlements even if the benefit cannot yet be exercised. However, the gap in the protection afforded by s 340 that would exist should Qantas' second contention be accepted would include the inapplicability of s 340(1)(b) to, for example, adverse action taken against a person to prevent the future taking of annual leave in circumstances where an employment contract has been signed but work has not yet commenced so that the leave has not yet started to accrue and is, therefore, not yet an existing contingent entitlement. Section 340(1)(b) would also not apply to adverse action taken to prevent the future taking of annual leave where an employee has an annual leave deficit because there would be no presently existing accruing benefit, just a reduction of a deficit in annual leave. The future rights in those cases could, on Qantas' second contention, form the basis for permissible adverse action. That construction should not be accepted.

Moreover, there is nothing in the stated objects of the Act, the stated objects of Pt 3-1 of Ch 3 , the other provisions of the Act , or the legislative