Page:Qantas v Transport Workers Union of Australia.pdf/48

Steward J

is nothing in the Explanatory Memorandum that would support the pursuit, as a matter of legislative policy, of such a distinction.

In that respect, the following reasons of the primary judge, which are essentially similar to the foregoing, are entirely correct and necessarily dispositive :

"[T]he submission that the outsourcing decision 'did not prevent anything' and that the Union cannot point to any direct or immediate 'prevention' is misconceived. The Union makes the point, correctly, that the insertion of a requirement that the prevention of the exercise of the workplace right be 'direct or immediate' involves a gloss on the words of s 340(1)(b). The section directs attention to whether adverse action has been taken 'to prevent' the exercise of a workplace right. There is no basis for adding a requirement that the right be of a particular nature such that it can be characterised, by some sort of evaluative assessment, to be sufficiently immediate. In any event, the outsourcing decision prevented the members of the Union who were affected employees exercising their workplace right to do something that Qantas did not want to occur and wished to prevent, that is, participation in protected industrial action. Section 340(1)(b) contemplates acts to prevent employees exercising workplace rights by preventing circumstances arising whereby those rights could be exercised."

Fourthly, the reliance by Qantas on the decision in Burnie Port Corporation is flawed. The operative language in that case required the Full Court to focus on whether the putative employee was "entitled" to the benefit of an industrial instrument (relevantly a certain EBA) at a time when he was not employed by the Port. The language used in s 340(1)(b) is, for the reasons given above, very different from that considered in Burnie Port Corporation.

It is otherwise unnecessary to consider the TWU's notice of contention, or its proposed cross-appeal. The appeal must be dismissed.