Page:Qantas v Transport Workers Union of Australia.pdf/44

Steward J

the provision refers to a person who "has" a right, and thereafter: in para (a) the reference is to a person who "is entitled" to certain matters, or who "has" a certain role or responsibility; in para (b) the reference is to a person who "is able to initiate, or participate in, a process or proceedings", relevantly here protected industrial action; and in para (c) the reference is to a person who "is able to make" a certain type of complaint or inquiry. In the case of para (c) the significance of the phrase "is able to make" has led Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd [No 6] to observe that the ability to make a complaint must be underpinned by some entitlement or right to do so106, which, inferentially, must be actually and presently held by the employee. Dodds-Streeton J's observation has since been upheld by the Full Court of the Federal Court in Cigarette & Gift Warehouse Pty Ltd v Whelan. It is plainly correct.

Here, Qantas submitted, as at 30 November 2020 it could not be said that the ground handling employees had a presently held right to initiate or participate in protected industrial action, for the reasons set out above. The TWU, and the Minister for Employment and Workplace Relations intervening, sought to contend otherwise by submitting that the employees had contingent rights to initiate or participate in such action and that this was sufficient to satisfy s 341(1)(b) of the FWA. Reference was made to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), which expressed the proposition that the word "benefit" in