Page:Qantas v Transport Workers Union of Australia.pdf/35

Steward J

ballot, and more than 50 per cent of those voters to approve the proposed industrial action. In the case of the QGS ground handling employees, none of those steps had taken place before 30 November 2020.

It was in this context that the TWU relevantly made the following allegation in its amended statement of claim :

"In the circumstances, Qantas contravened s 340(1)(b) of the FW Act by taking adverse action against the Affected Employees to prevent the Affected Employees exercising the workplace right, following the nominal expiry date of enterprise agreements which covered and applied to them, to participate in a process under the FW Act, being the ability to participate in a process under the FW Act by … engaging in protected industrial action for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement under the FW Act."

By reason of s 361 of the FWA, it was common ground that it was to be presumed that QAL took adverse action against the ground handling employees for the reason alleged by the TWU in its pleading. Section 361(1) provides:

"If:

1. in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

2. taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise."

Section 360 should also be noted. It provides that a person "takes action for a particular reason if the reasons for the action include that reason".

As explained below at [111]-[114], the primary judge found that QAL had failed to displace that presumption on the narrowest of grounds. Qantas did not seek to attack that conclusion on appeal to this Court. Instead, it relied upon what ultimately amounted to a single legal proposition, namely that QAL could not