By Jack de Flamingh and Alice Johnson -
Snapshot
- The recent case of Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873 acts as a reminder of the reach of the general protection provisions of the Fair Work Act 2009 (Cth).
- A strong business case will not preclude a finding that decisions have been made for unlawful reasons.
- The pandemic may not be utilised as a ‘transformational’ opportunity by employers, to the detriment of the workplace rights of employees.
The recent Federal Court judgment in Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873 acts as a reminder of the reach of the general protection provisions of the Fair Work Act 2009 (Cth) (‘FW Act’).
Despite a strong business case against the backdrop of COVID-19 and its devastating impact on the airline industry, the Federal Court held that Qantas had not discharged the onus of proving its decision to outsource part of its operations was not motivated by an unlawful reason. The decision is subject to appeal but, for now, suggests that a sound and valid reason will not always displace an unlawful one.
Legislative framework
The general protections in Part 3-1 of the FW Act are well known. Section 340(1) provides that a person must not take ‘adverse action’ against another person for a number of reasons, including that the person has a ‘workplace right’ or has, or has not, exercised a ‘workplace right’.
The causal link between the ‘adverse action’ and the prohibited reason is of critical importance. Taking adverse action will not be unlawful under these provisions unless it was taken because of the prohibited attribute. Proving this causal connection can be difficult but is aided by two features of the FW Act.
The first is that there is a ‘reverse onus of proof’ – that is, it is presumed that action was taken for a reason or with an intent unless the person proves otherwise.
The second is that the prohibited reason need only be one of multiple reasons to be a contravention, albeit it must be a substantial and operative reason for the action. In other words, if one of the reasons for a given course of adverse action is a prohibited reason then that is sufficient, even though there were other factors which played a greater role in the decision-making process.
