Summary

• In November 2020, Qantas Airways Limited made a decision that precluded employees from taking protected industrial action under the Fair Work Act.

• The Transport Workers Union sought to determine that the decision breached s 340(1)(b) of the Fair Work Act 2009 (the Act), that there was an intention of depriving affected employees from exercising their workplace rights.

• The Federal Court found that Qantas had breached the Act.

Background

In June 2020, discussion began within Qantas Airways Limited (QAL) on whether to outsource their ground handling operations to third party providers. The Transport Workers Union (the TWU) argued for operations to continue being provided by employees of QAL and its subsidiary Qantas Ground Services Pty Ltd.

In November 2020, QAL made the decision to outsource, and affected employees were either redeployed or retrenched. Significantly, the timing of the decision was such that the employees were unable to seek protected industrial action under the Act.

Section 417 of the Act prevented QAL employees from industrial action before their enterprise agreement passed the nominal expiry date in December 2020. Part 3-3 of the Act required Qantas Ground Services employees to satisfy preliminary events which had not occurred.

The issue

The TWU applied to the Federal Court of Australia, alleging that the decision was in breach of s 340(1)(b) of the Act. That provision states, in effect, that a person must not take adverse action against another to prevent the exercise of a workplace right. TWU argued that QAL’s decision was an adverse action and prevented the employees from exercising their workplace rights to industrial action.

QAL sought to defend its actions on the grounds that its decision did not prevent the employees from exercising their workplace right because the right to industrial action was not a workplace right at the time. QAL argued that the proper construction of s 340(1)(b) was that workplace rights are restricted to that which existed at the time the adverse action was made.

Result

The Full Court of the Federal Court unanimously held that the operation of s 340(1)(b) was not limited to workplace rights that existed at the time of the action. The prohibition of adverse actions under s 340(1)(b) also extended to indirect means of taking such action and, therefore, the decision was in breach of s 340(1)(b) of the Act.

This case serves as a warning to employers that may try to find a loophole to exploit employee rights. What may seem like a window of opportunity to exploit the law will not be conceded by the Court. Instead, employers should aim to resolve conflicts through negotiation and close consideration of workplace agreements and the law.

If you believe you have had adverse action taken against you or would like to know more about your workplace rights, we have a team of experienced lawyers who can give you advice and guidance as to the best way forward.

Key message

• Employers should take care when making decisions that may negatively impact their employees as it may be considered an adverse action.

• A proper construction of the Act will not allow loopholes for unjustified adverse action to be taken by employers against their employees.

• Employees should consider contacting a lawyer to better understand their workplace rights.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*