Page:Qantas v Transport Workers Union of Australia.pdf/32

Gordon J

Edelman J

history of the Act or the predecessor legislation that supports Qantas' narrow construction of s 340(1)(b). Put simply, the provisions in Pt 3-1 of the Act were "intended to rationalise, but not diminish, existing protections" and the "new provisions" in Pt 3-1 (which included s 340(1)(b)) were intended to "protect persons against a broader range of adverse action".

Finally, nothing in these reasons should be understood as suggesting that employers are prevented from considering the existence and terms of enterprise agreements in making decisions about the future. In fact, to fail to do so might in some circumstances constitute a breach of duty. There is no legal or practical difficulty in allowing such a matter to be considered by a decision-maker. However, what is not permissible, and what s 340(1)(b) protects against, is the taking of adverse action to prevent the exercise of a workplace right, whether presently existing or not. If Qantas had established, for example, that its reason for the outsourcing decision was to generate substantial savings in order to address imminent liquidity issues (with the inevitable consequence of that decision being termination of employment of staff), and that its reasons did not include a substantial and operative reason of preventing the employees affected by the outsourcing decision from organising and engaging in protected industrial action, then the outsourcing decision would not have been for a proscribed or prohibited purpose (and the termination would not have been unlawful under s 340). Qantas did not do so.