By Dr Michelle Sharpe -
Key decisions
- Qantas Airways Limited & Anor v Transport Workers Union of Australia [2023] HCA 27
- Crime and Corruption Commission v Carne [2023] HCA 28
Industrial law
Prohibition on taking adverse action against a person to prevent exercise of workplace right
In Qantas Airways Limited & Anor v Transport Workers Union of Australia [2023] HCA 27 (13 September 2023) the High Court was required to determine whether s 340(1)(b) of the Fair Work Act 2009 (Cth) (‘Fair Work Act’) prohibits a person from taking action against another person for the purpose of preventing the exercise of a workplace right when that right is not a presently existing right but a right that might arise in the future.
In ten Australian airports, Qantas’ ground handling operations were performed in-house by employees of Qantas or Qantas Ground Services Pty Ltd (‘QGS’). Most of these employees were members of the respondent union (‘TWU’). In November 2020, while its operations were severely affected by the COVID-19 pandemic, Qantas announced a decision to outsource its ground handling operations (‘outsourcing decision’). The outsourcing decision was an ‘adverse action’ within the meaning of s 342 of the Fair Work Act because it altered the position of the Qantas and QGS employees to their prejudice. At the time of the announcement, Qantas was prohibited by s 417 of the Fair Work Act from organising or engaging in protected industrial action, under s 415 of the Fair Work Act, because their enterprise agreement had not passed its nominal expiry date. And the QGS employees were practically unable to take protected industrial action because the steps necessary to engage in industrial action under the Fair Work Act had not yet been taken.
