Page:Qantas v Transport Workers Union of Australia.pdf/36

Steward J

have taken adverse action to prevent the exercise of the relevant workplace right because, as at 30 November 2020, no ground handling employee had the right or ability to initiate or participate in protected industrial action. This contention turns upon an interpretation of s 340(1)(b) that requires the "workplace right", the exercise of which is to be prevented, to exist at the time when adverse action is taken. For the reasons given below, that construction of s 340(1)(b) of the FWA is unsustainable.

The activating reasons for taking adverse action

In a case where workers have been made redundant, the statutory context relevant to construing s 340 of the FWA includes Part 3-2 of that Act, which addresses the topic of unfair dismissal. Section 385 appears within Pt 3-2 of the FWA. It defines when a person has been "unfairly dismissed". Of course, the TWU did not contend that any of its members had been unfairly dismissed for the purposes of s 385 of the FWA. Had it done so, it might have been met with the defence of "genuine redundancy" as provided by s 385(d). Section 389(1) supplies a definition of this term. It states:

"A person's dismissal was a case of genuine redundancy if:

1. the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy."

Industrial law has long recognised that genuine redundancy, defined over the years in various ways, is a legitimate and acceptable reason for the termination of employment. As Ryan J famously observed in Jones v Department