Page:Qantas v Transport Workers Union of Australia.pdf/9

Kiefel CJ

Gageler J

Gleeson J

Jagot J increase variability in Qantas' cost base; and (3) obviation of the need for capital expenditure of $80 million over the following five years in updated equipment to perform the services in-house.

The proscribed reasons for the outsourcing decision

Despite Qantas' sound reasons for the outsourcing decision, the primary judge was not satisfied that Mr David was "not subjectively conscious of other considerations", and concluded that Qantas had not discharged its onus under s 361 of the Act of disproving that substantial and operative reasons for the decision were to prevent the affected employees from organising and engaging in protected industrial action and from participating in enterprise bargaining the following year. Specifically, the primary judge was not positively satisfied that the additional reasons were not substantial and operative reasons for Mr David outsourcing the ground handling operations.

The legislative scheme for protection of workplace rights

Chapter 3 of the Act, entitled "Rights and responsibilities of employees, employers, organisations etc", sets out rights and responsibilities of "national system employees, national system employers, organisations and others (such as independent contractors and industrial associations)". Chapter 3 is particularly directed to the Act's object of :

"enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms".

Part 3-1 is entitled "General protections". It has three broad concerns: (1) protecting workplace rights; (2) protecting freedom of association and involvement in lawful industrial activities; and (3) providing other protections, including protection from discrimination. There is a long and complex history of