Page:Qantas v Transport Workers Union of Australia.pdf/37

Steward J

of Energy and Minerals, it is an employer's "prerogative". In the full passage from which this expression emerges, his Honour said :

"[I]t is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions."

Of course, it is no technical legal answer to a contention that adverse action – in the form of dismissal or the like – has taken place in contravention of s 340, to submit that the defence of genuine redundancy is made out. That is a defence to a claim of unfair dismissal; it is not a defence for the purposes of Div 3 of Pt 3-1 of the FWA. But at a practical level, and very much generally speaking, an employer who can demonstrate that a dismissal took place "because of changes in the operational requirements of the employer's enterprise" which resulted in a relevant job being no longer required, to use the language of s 389, should thereby be capable of displacing the presumption arising under s 361 of the FWA in a case where a contravention of s 340 is alleged. The foregoing might not be applicable in a case where some employees are rendered redundant, and others not, and the process for selecting employees is unrelated to the circumstances of redundancy. But where, as here, all employees of a division are rendered redundant, the general observation remains valid. Such a conclusion ensures that the FWA gives effect to "harmonious goals".

Consistently with the foregoing, a distinction has traditionally been drawn by courts between the operative or immediate reason for taking adverse action as against a merely contributing factor or factors for undertaking such conduct. Section 340 is concerned with the former reason for acting and not the latter. Thus,