Under the Fair Work Act 2009 (Cth) (FW Act), an employer must not take adverse action against one or more employees to prevent the exercise of a workplace right by those employees. This was what was at issue in a recent decision from the High Court.

Background

In November 2020, Qantas announced a decision to outsource its ground-handling operations at 10 Australian airports. The effect of the outsourcing decision was that ground-handling services, then being performed by employees of Qantas and Qantas subsidiary QGS, many of whom were members of the Transport Workers Union (TWU), would instead be performed by staff of third-party suppliers contracted to provide those services.

The TWU brought a claim on behalf of the baggage-handlers who lost their jobs in the outsourcing, arguing that Qantas had made the outsourcing decision to prevent the TWU and its member employees from organising and engaging in protected industrial action in support of the enterprise agreements that were due to be renegotiated in 2021.

The Federal Court agreed. The Court accepted that Qantas made the outsourcing decision to reduce business costs. However, the Federal Court ruled that the decision was also made to prevent the affected employees from exercising workplace rights to organise and engage in protected industrial action and to participate in bargaining.

Appeal

This week, the High Court dismissed the appeal against that decision (Qantas Airways Limited v Transport Workers Union of Australia (2023)).

The High Court ruled:

• 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 the FW Act general protections provisions, regardless of whether that other person has the relevant workplace right at the time the adverse action is taken;
• a person can have a workplace right, comprising an entitlement to the benefit of a workplace law or workplace instrument, even though the person's capacity to exercise the workplace right may depend on accrual over time or on the occurrence of a future event or contingency;
• where the capacity of a person to exercise the workplace right depends on temporal and circumstantial contingencies, the person has the workplace right, albeit that the right is not presently exercisable;
• where the exercise of the purported workplace right is prohibited or would expose the person to legal process to prevent the exercise of that purported right, it cannot be said that the person has the workplace right at all;
• adverse action taken with mere awareness of an effect on another person's workplace rights is not enough to contravene the provision – it must be taken because the person has or is able to exercise that right; and
• an employer prevents the exercise of a workplace right if it stops or puts an obstacle in the way of the exercise of a presently held right or a right that may arise at some future date.