Page:Qantas v Transport Workers Union of Australia.pdf/43

Steward J

of outsourcing by Mr Jones, I would answer in the positive. But neither of these questions is the issue I am presently addressing.

I am not satisfied that Qantas has proved on the balance of probabilities that Mr David did not decide to outsource the ground operations for reasons which included the Relevant Prohibited Reason. As will already be obvious, this conclusion reflects my unease as to the state of the evidence on this fact in issue and, in particular, Mr David's evidence when viewed in the light of all the other evidence to which I have made reference."

Thus, it was on the narrowest of grounds that QAL was unable to succeed in demonstrating that it did not take adverse action for the reasons alleged by the TWU.

Preventing the exercise of a workplace right

This left Qantas with its point of construction concerning how to apply s 340(1). The submission turned upon the language of the definition of "workplace right" in s 341(1) of the FWA. That provision is in the following terms:

"A person has a workplace right if the person:

1. is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

2. is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

3. is able to make a complaint or inquiry:1. to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

2. if the person is an employee – in relation to his or her employment."

Ultimately, this case concerned only s 341(1)(b). The term "process or proceedings under a workplace law or workplace instrument" is defined in s 341(2) by reference to a list of activities or actions. As already mentioned, one of these is "protected industrial action". Qantas submitted that the language of s 341(1) is necessarily concerned with presently held workplace rights. Thus, the chapeau to