Page:Qantas v Transport Workers Union of Australia.pdf/6

Kiefel CJ

Gageler J

Gleeson J

Jagot J

The issue on this appeal is whether the primary judge and a Full Court of the Federal Court (Bromberg, Rangiah and Bromwich JJ) on appeal were correct to conclude that, by making the outsourcing decision for reasons that included those additional reasons, Qantas contravened s 340(1)(b) of the Act, which provides that a person must not take adverse action against another person "to prevent the exercise of a workplace right by the other person".

To support its argument that the conclusion was wrong, Qantas advanced two contentions of statutory construction on the hearing of the appeal. The broader contention was that s 340(1)(b) bites only where a workplace right is presently in existence at the time adverse action is taken. The narrower contention, advanced in the alternative, was that an employer does not "prevent" the exercise of a workplace right by an employee within the meaning of s 340(1)(b) merely by taking advantage of a "window of opportunity" to take adverse action against the employee at a time when "architectural feature[s]" of the Act operate to prevent the employee from exercising a workplace right including by taking industrial action in response. Neither contention can be accepted.

For the reasons given below, the appeal must be dismissed. In short, a person who takes adverse action against another person for a substantial and operative reason of preventing the exercise of a workplace right by the other person contravenes s 340(1)(b), regardless of whether that other person has the relevant workplace right at the time the adverse action is taken. Qantas did not avoid the operation of s 340(1)(b) in relation to its adverse action by taking the action prior to the existence of the workplace rights the exercise of which Qantas sought to thwart.

Background to the outsourcing decision

At the relevant times, Qantas' ground handling operations consisted of ramp, baggage and fleet presentation work, such as baggage handling and aircraft cleaning. At all but ten Australian airports, this work was performed for Qantas by third-party contractors. At the remaining ten airports, the work was performed inhouse by Qantas and QGS employees.

The affected employees were covered by two enterprise agreements. The agreement covering the affected Qantas employees commenced operation on