Page:Qantas v Transport Workers Union of Australia.pdf/42

Steward J

Specialist third-party ground handlers provide services to many airlines as their core business. This means they have much lower overheads and equipment costs, better access to technology and resources they can scale up and down more easily between airlines."

The foregoing might have been accepted by the primary judge as the actual or operative reasons for the taking of adverse action by QAL. If that had been the case, QAL would not have been found to have contravened s 340 of the FWA. But without deciding whether the foregoing could have been the actual or operative reasons of QAL, the primary judge determined that the evidence before him was most unsatisfactory. That evidence included affidavits filed by current and former officers of QAL, and the answers those officers gave in cross-examination. Mr Jones was one such key witness. The primary judge described him as an "unimpressive witness" and observed that unless what Mr Jones said accorded with the "inherent probabilities" or other evidence accepted by his Honour, the primary judge did not "consider it … safe to place any significant reliance upon [Mr Jones'] evidence". Mr Hughes was another witness. His evidence was found, in some respects, to be "less than compelling". The primary judge lacked confidence in accepting the affidavit sworn by Mr David ; he did not consider that Mr David's evidence was "entirely satisfactory", and he found that Mr David was unwilling "to make concessions from time to time". The upshot was that the primary judge found that QAL had simply failed to discharge its onus of demonstrating that the reason pleaded by the TWU for taking adverse action, presumed by s 361 to exist, was incorrect. As his Honour said:

"If the question posed was whether I have reached a state of actual persuasion or reasonable satisfaction that a substantial and operative reason for Mr David outsourcing the ground operations was the Relevant Prohibited Reason, I would answer that question in the negative. If the same question was posed in relation to the reasons for the relevant endorsement