Qantas Airways Limited & Anor v Transport Workers Union of Australia

[2023] HCATrans 56

[2023] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney  No S153 of 2022

B e t w e e n -

QANTAS AIRWAYS LIMITED ACN 009 661 901

First Appellant

QANTAS GROUND SERVICES PTY LTD ACN 137 771 692

Second Appellant

and

TRANSPORT WORKERS UNION OF AUSTRALIA

Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MAY 2023, AT 10.02 AM

Copyright in the High Court of Australia

KIEFEL CJ:   Yes, Mr Hutley.

MR HUTLEY:   Thank you, your Honour.  Can I just deal with two issues raised by your Honour Justice Steward yesterday.  At transcript 64 to 65, your Honour raised the issue about circumstances if an employer is bound by an enterprise agreement and does not like it.  Could I give your Honour just one more reference to an authority, that of the decision of her Honour Justice Branson in Maritime Union of Australia v CSL Australia Pty Ltd, 113 IR 326 – it is volume 7, tab 52, the relevant paragraph is at 55, which is to the effect of the discussion that took place between the Bench and Bar yesterday. That is also referred to in the explanatory memorandum at volume 8, tab 59, page 2630, paragraph 1458 – and your Honour referred, of course, to the decision of Justice Finkelstein in the Greater Dandenong Case, but they are all to the same effect.

Your Honours, again, your Honour asked about 341(1)(c) in the body of Federal Court authority which required presently existing instruments that gave the person the capacity to make a complaint.  That was at transcript 57.  We have arranged a list of the cases and there is an active debate in the Federal Court as to, in effect, the extent of the need.  But none of those cases were concerned with whether there might be, as it were, conditions to be satisfied before one could exercise the right of complaint.  They were not concerned with that issue; they were more concerned with whether it found a basis in an industrial instrument or not.

So, the point which we were seeking to raise did not – and in that regard, could I give your Honours a short reference to the explanatory memorandum dealing with section 341.  If your Honours go to volume 8, tab 59, page 2612 ‑ ‑ ‑

GORDON J:   Did you say 2612?

MR HUTLEY:   Yes, your Honour – I am hoping.  Your Honours will see it at paragraph 1363.  Now, although this is dealing with 341(1)(a), it says:

A benefit under a workplace law or workplace instrument is also intended to include benefits that are contingent or accruing –

and they give the example of long service leave.  So, in effect, it was contemplated – and to go back to 341(1)(a) or its text, if I might, your Honours – which your Honours will find at page 398 in the first volume:

is entitled to –

So, it was clearly contemplated that one could have an entitlement which was contingent and, we would say, similarly, there is no reason to conclude that a similar approach was not applied to “is able to initiate, or participate in”.  That was the point I was seeking to draw out.  Whilst not necessary for determination in this appeal, the, as it were, adamantine position set forth by our learned friend – particularly in paragraphs 5 and 6 of their outline – is by no means clear or consistent with what a Parliament appeared to contemplate in relation to such rights.

Of course, that is consistent with the observations of the Court to the extent – and, historically, in the Burnie Port, in paragraph 30, where they spoke of rights, for example, rights to overtime, were rights which existed before you had, as it were, done the time and, therefore, rights which, of there nature, to be enjoyed one has to satisfy certain matters or, for that matter, conditions have to exist for them to be enjoyed.  That was the point.

Your Honour, that was the question I wished to deal with.  Yesterday afternoon, I was about to take your Honours through the circumstances which were required on Qantas’ approach before one was entitled to take protected industrial action.  You will be surprised to hear they are a little complex.  Firstly, one has to have an agreement by the employer to bargain or initiate bargaining or a majority support determination is made by the Fair Work Commission at section 437(2A), which your Honours will find at page 444.

Such a determination has to provide that a bargaining representative cannot make an application for a protected action ballot, unless there has been a notification time.  That expression is defined in section 173(2) at page 311, and includes agreement to bargain, or initiation of bargaining by the employer or the making of a majority support determination.  Application also has to have been made to the Fair Work Commission for a protected action ballot order under 437(1) – and that is page 444 in the volume.  The Fair Work Commission has to be satisfied that the requirements set out in section 443 – at page 447 of the bundle – are met, and makes a protected action ballot order, being that the applicant for the order has made a valid application and has been, or is generally trying to reach agreement.

A protected action ballot is then conducted by the eligible employee’s ballot agent, who, as a matter – default position being the Australian Electoral Commission.  The protected action ballot takes place, and at least 50 per cent of eligible employees vote, and more than 50 per cent of those employees validly approve the action – that is section 459 at page 453.  Then the bargaining representative has given written notice of the action – and that is section 414.  Can I take your Honours to that shortly.  They are the notice requirements, your Honours will see, in 414(1).  One has to give – the period of notice must be at least three working days, and the notice cannot be given, as your Honours see from subsection (3), until the results of the ballot have been declared.  And the notice requirement – and that is it, before the person, et cetera.

So, in other words, stopping there, as we understand the position of Qantas, until that three‑day period has expired, one does not have the requisite right, and there is not much to present after that because in the ordinary nature of things the notice would be given immediately preceding and to end at or about the time that the protected industrial action is proposed to take place.  So, in effect, this is all supported, if your Honours go through section 408(a) which defines “protected industrial action” – and I am dealing with employee claim action which your Honours will see at page 427 of the bundle, and that requires that the common requirements set out in section 413 are complied with and otherwise the other matters – and your Honours see those requirements under 413.  So, in other words, on our learned friends’ approach, 340(2)(b) would be essentially neutralised with respect to protected industrial action.

GORDON J:   You mean (1)(b), do you?

MR HUTLEY:   Sorry, (1)(b).  Thank you, your Honour.  And almost with 340 (1)(a)(i), because it would be all over – and (2), perhaps.  The proposing would be effectively neutralised because, as it were, the protected industrial action would be upon one before one was able to take any action, according to our learned friend.  And, of course, acts of coercion – seeking to deter that on one side or another would be perfectly legal up until the day, as it were – likely, day before the protected industrial action. 

EDELMAN J:   Unless, of course, the workplace right is something other than the protected industrial action – unless, of course, the protected workplace right is one of the steps leading up to that.

MR HUTLEY:   Quite.  But that depends upon the state of mind of the employer.

EDELMAN J:   Yes.

MR HUTLEY:   That is another point.  If one was to come to this construction, one would be giving a guide card as to what you should turn your mind to if you really want to cause problems and harm employees.  Whatever you do, just think about the end point and everything up to there is tickety‑boo.  In effect, you would be encouraged to announce it, on our learned friends’ construction.

Can I now turn to our outline, proposition 10.  Our learned friends have two constructions which they express in their outline, at 5, which they call the “narrow” construction – which I will come to in a moment – and 6, which they call their “broader” construction.  It would appear that that construction – both those constructions depart from the position which they expressed in their written submissions, particularly at their reply – paragraph 7 – because the concept of time‑bound rights seems to exclude – would include some of the matters which were in the formulation, in paragraph 7.  But, firstly, can I deal with the “narrow” construction.

GLEESON J:   It is a contention, rather than a construction.

MR HUTLEY:   Pardon?

GLEESON J:   It is a contention.  It is a narrower contention.

MR HUTLEY:   Well, it is called a contention, but it is really a kind of expression as to what the true construction of the Act – of the section requires.  It got to be, in effect, a submission that on the true construction of the relevant provision, matters having those characteristics fall on one side or the other of the line – that is why I call it a construction.  I accept that it is expressed as a contention, your Honour.  Perhaps I am missing the nuance of your Honour’s question.

GLEESON J:   I just wanted to confirm my understanding that the narrower contention is subsumed within the broader ‑ ‑ ‑

MR HUTLEY:   Quite.  The narrower contention is unnecessary if, as we understood it, there were thought to be alternatives, because the narrower contention seems to be a bespoke contention directed at protected industrial action.  We take that from the reference to “positively denies” and that takes, as we understand, our learned friends to section 417, which your Honours were taken to yesterday – 417 dealing with taking industrial action during the nominal period of an enterprise agreement.

It does not, of course, deal with the position after the expiry of an enterprise agreement but, as we understand our learned friends’ submissions, they move then to section 418, which empowers the Fair Work Commission to act to, in effect, direct the stoppage – in other formulations – of industrial action which is not protected industrial action, and then under 421 of the Act, contravention of an order under 418 is prohibited.  That is a civil penalty provision under section 546.  That is, we understand, the logic of the position.  Now, setting aside the fact that, other than 417, there is nothing: 

which positively denies –

in the sense of a proscription.  There is, though, the consequence, which I have spoken to under section 418, that, if one does take industrial action, other than protected industrial action, one is exposed to those steps.

Now, a short point in relation to this narrower contention:  it has no textual relationship at all to section 340, or, for that matter, section 341.  So, in effect, it seems to be a construct designed, as it were, bespoke to the particular circumstances of protected industrial action.  On that basis alone, it should be set aside as of no assistance to the Court.  Nothing about the so‑called architecture of the legislation suggests there would be such a narrower bespoke application.

That is what we wished to say about the narrower construction.  But then one comes to the broader contention – I will use the word “contention” – if one can go for a moment to the language used by our learned friends in paragraph 6, it says:

bites only where there is a workplace right presently in existence.  It is apt to protect those workplace rights which are in existence and capable of exercise throughout the whole of the employment relationship –

Now, that, with respect, is an obscure term.  One’s right to take annual leave is not apt to be capable of exercise throughout the period.  It is capable of exercise at different points of time, subject to different points of time, subject to different notice conditions, from time to time:

even if the quantum of their enjoyment depends on the relationship as it unfolds.

Now, we have given your Honours a reference in this regard to what this Court said in the Federal Commissioner of Taxation v James Flood Pty Ltd 88 CLR 492 – we did not put it in the book – the relevant passages are 507 and 508, which deal with, in effect, the tax effect of what might be called accruing leave entitlements, and the Court there described it in these terms, if I can just quote, without taking them:

In respect of those employees –

those who are accruing leave entitlements: 

there was no debitum in praesenti solvendum in futuro.  There was not an accrued obligation, whether absolute or defeasible.  There was at best an inchoate liability in process of accrual but subject to a variety of contingencies.

No doubt, one contingency being that you continue in employment, to get a point.  Now, then, so, that seems to be – returning to ‑ ‑ ‑

STEWARD J:   What is the relevance of James Flood?  They did not get a deduction.

MR HUTLEY:   To say that this form – what?

STEWARD J:   They did not get a deduction.

MR HUTLEY:   No, no, quite.  Because it was not sufficient ‑ ‑ ‑

STEWARD J:   It was not incurred.

MR HUTLEY:   It was not incurred.  But that is why these formulations of having a present existing right, which is not able to be exercised, is not assistance, we say, in relation to construction issue which your Honours have.  And one gets back to concentrating on the words of the particular section, and that they are concentrating on a psychological state.

GORDON J:   Sorry, I have misunderstood this, I thought this broader contention construction was dividing it into, in effect, the bundle into two categories.  The first were those that existed throughout the period, and then the second were those which have been described as time-bound, into which leave would go.

MR HUTLEY:   Well, that itself is highly ambiguous.

GORDON J:   It might be, but is not that the distinction that is being drawn here?

MR HUTLEY:   Quite.  The first point, we say, is there is no textual basis for this distinction.  Secondly, it is a distinction which raises more questions than it seeks to answer.  And that is why one has to ask oneself of how it applies in particular circumstances.  But the ‑ ‑ ‑

EDELMAN J:   Mr Hutley, it is a distinction that exists all across the common law in equity, which is the difference between an immediately accrued but conditional right, power, or privilege, and one that has not accrued but will only arise at a later point in time.  In other words, where the conditions are not conditions on something, they are conditions ‑ ‑ ‑

MR HUTLEY:   Circumstance.

EDELMAN J:   ‑ ‑ ‑ before – the circumstances, before a right will arise.

MR HUTLEY:   Quite.  I accept that completely.

EDELMAN J:   As a matter of construction, that distinction may or may not be present in the provision.

MR HUTLEY:   Quite.  We say there is no textual – but just to make clear what that involves in the context of this legislation, if that is the appropriate distinction, one then has to, in effect, although our learned friends do not want to go to examples, see what its implications are.  Take, for example, if you would go to section 97, it says:

each year of service with his or her employer, and employee is entitled to 10 days of paid personal/carer’s leave.

For each year.  So, in effect, as time proceeds on one, per year, acquires a contingent entitlement to such leave.  But 97:

An employee may take paid personal/carer’s leave if the leave is taken:

(a)because the employee is not fit . . .

(b)to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires . . . because of –

et cetera.  Now, one asks the question, is that what is called a time‑bound right?  As we understood our learned friend’s submissions at paragraph 7 of their reply, they were submitting it was not.  They were submitting that was an existing right.  They now seem to be saying it is a different position because they are now saying, however, where the right is time‑bound, in that, the entire existence of the right depends upon circumstances.  Now, that right ‑ ‑ ‑

EDELMAN J:   I may be wrong, but as I understand the submission, it is that, for example with 96 and 97, the right immediately exists upon the first scintilla of time at which it started to accrue, but you may not be able to exercise it for a period of time.  That is why 96(1) talks about an employer being “entitled” and then 96(2) talks about how the entitlement accrues progressively.

MR HUTLEY:   Well, with respect, if that is all that is being said, we say it is a right which is contingent on the occurrence of certain events.

STEWARD J:   Not the right.  Its discharge or performance might be contingent.

MR HUTLEY:   Well, the extent of the right.  One that accrues 10 days for every year is a very different right after 40 years of employment to ‑ ‑ ‑

STEWARD J:   But do you accept what Justice Edelman said, that you can have a right, but it is a right where the occasion for its performance or its discharge only arises upon the happening of future events which may or may not occur?

MR HUTLEY:   If that is all it is, we say protected industrial action falls within that description.

STEWARD J:   I think even your opponent would agree with that.

MR HUTLEY:   Quite.  But then, if that is the case, it is unclear to me whether they are saying, for example, personal paid leave is a time‑bound right and therefore it does not arise until the conditions are met for its satisfaction, which, as I understood, was different to the point – with respect, your Honour, we would say that is what flows, but I understand that his Honour Justice Edelman is putting a different proposition to me and, with respect, that uncertainty speaks to the ambiguity in the formulation that is being put before this Court.

What we say is, it is an unstable, unclear distinction which finds no basis, for that matter, in either 341 or, certainly, is not to be imported into 340, which has the simple operations which we speak to.  That is point we wish to make.

GORDON J:   Could you answer a really silly question of mine?

MR HUTLEY:   They are always the ones that worry me.

GORDON J:   What is a right which is in existence and capable of exercise throughout the whole of the employment relationship?

MR HUTLEY:   We do not know.  Probably the right to work.

STEWARD J:   And to be paid.

MR HUTLEY:   In one sense, that is a right which accrues from time to time once you are ‑ ‑ ‑

GORDON J:   I am asking you to contra a distinction to the second sentence.

MR HUTLEY:   With respect, it is very hard to understand what that distinction involves.

GORDON J:   I understand the distinction, I just want you to know what is in the first category.

MR HUTLEY:   Your Honour may have to direct it to our learned friends because, depending upon how you determine, for example, words like “the entire existence of the right” – whatever that means – in the second category, that may flip matters from the first to the second category.  To take up the point that your Honour Justice Edelman, took me – and the point that Justice Steward took with me – the matter – one firstly, has to engage in a process of somewhat detailed construction of what this all means to understand how it operates in practice to this legislation and is apt to produce wholly capricious results depending on which side of these obscure lines one chooses to identify a right.  It is said that a protected provision such as 340 is concentrating on such, kind of what you might call obscurity, in our respectful submission, it points to the fact that these distinctions are simply contemplated within this legislation.

GAGELER J:   Mr Hutley, I wonder if part of the problem here is focusing on the expression “right” within the collocation “workplace right”, rather than focusing on what is said to be a workplace right.  So, if one takes 341(1)(a), all you need is an entitlement to a benefit under a workplace law.  If you look back, then, at section 96, you see you have an entitlement to a benefit under a workplace law.

MR HUTLEY:   Quite.

GAGELER J:   You do not go to section 97 – you do not need to – that is it.

MR HUTLEY:   One might say exactly the same with protected industrial action.  That is a benefit you are entitled to under the legislation.  You do not have to worry about how you get there.

EDELMAN J:   Or comes straight back to the same question – is there an immediate entitlement and does 341 require immediacy of the entitlement?

MR HUTLEY:   Quite.  But that takes you back to the explanatory memorandum I took your Honours to where the Court – clearly, everyone contemplated – or the Legislature contemplated that contingencies could be involved because if they are not, you get into these arbitrary distinctions.

STEWARD J:   That was a comment about (1)(a), though.  It was not a comment about (1)(b), and we are a (1)(b) case.

MR HUTLEY:   I understand it, your Honour, but the words “entitled” and “able” are not, as it were there, words of a similar calibre.

GORDON J:   It was expanding the concept of “benefit” in the air.

MR HUTLEY:   Quite.  Well, ability – I am repeating myself; your Honours see the point.  Could I now – and that was really the point about – and I think I have covered them, what we have had in contingent rights if, in effect, one was dealing with rights which were subject to the satisfaction of contingencies, satisfied the requirements.  Our simple point is there is no real distinction between a protected industrial action and any other of these rights which we have taken you through with their various contingencies and requirements, sometimes accruing over time, sometimes dependent upon external circumstances beyond the control of the individuals . . . . . community service rights and the like.

In other words, there is no necessity to engage, we submit, in these fine distinctions when one has simple words in 340 which can be applied simply and one can identify the conduct which infringes it by reference to a state of mind which is the subject of inquiry.  So that is what we wish to say about that.

Can I now turn to the question of relief?  Now, we have set out what we wish to say on this topic.

KIEFEL CJ:   Are you dealing any further with your notice of contention?

MR HUTLEY:   I think I have actually addressed the concept of contingent rights in the process.

KIEFEL CJ:   In the process.  You needed an extension for your notice of contention, I think, too, Mr Hutley.

MR HUTLEY:   Did I, your Honour?  I do not think our learned friends were objecting to it.

KIEFEL CJ:   We both forgot.  I do not think there is any objection.

MR HUTLEY:   There is a temptation, but there is no objection.

KIEFEL CJ:   You have the extension.

MR HUTLEY:   I am almost moved to tears.  Could I turn to paragraph 12.  Now, we have set out what we say about this in our submissions 57 to 61.  I do not think it will be improved for the repetition, your Honour, so I am content to rely on our written submissions in relation to it.

KIEFEL CJ:   What about the question of remittance in relation to the ‑ ‑ ‑ 

MR HUTLEY:   Yes.  I was just about to come to that, your Honour.  Now, if your Honours go to the core appeal book, let us deal with it shortly.
And if your Honours go to paragraph 431, the last paragraph in the Full Court’s reasons.

The TWU had filed a cross‑appeal against his Honour’s dismissal of the case under section 346(a) and your Honours will see that referred to at paragraph 4 in the Full Court’s judgment at the core appeal book page 152 and paragraph 23(c).  The court determined not to deal with that at all.

KIEFEL CJ:   Did their Honours not make an order dismissing the cross‑appeal?

MR HUTLEY:   I am just coming to that, your Honour.  And if your Honours go to page 301 in the core appeal book, an order was made dismissing it.  Now our investigation – in other words, this was a point not addressed at all by the court because it was unnecessary.  So, it is not as if they deal with it and dismissed it because they had found it, considered it – because they did not get to it, they simply did not address that question at all.

So, we are in a situation where the Full Court, whilst dismissing the cross‑appeal, they dismissed it without any consideration of the point at all.  Thus, we are in that situation as if the Full Court simply has not dealt with the question.

KIEFEL CJ:   But the question is, how should you have raised it here.

MR HUTLEY:   We could have sought special leave to appeal cross‑appeal on the basis ‑ ‑ ‑

KIEFEL CJ:   Yes.  Quite.

MR HUTLEY:   But, as we understand the practice in the Court, there has been – that, where the Court simply has never dealt with it, it is not usually required that one file a notice of cross‑appeal ‑ ‑ ‑

KIEFEL CJ:   I think it might be otherwise where an order has been made actually dismissing a cross‑appeal in the court below.

MR HUTLEY:   Well, your Honour, as they say ‑ ‑ ‑

KIEFEL CJ:   Because it is hard to see there is an issue unless something is brought before this Court saying that a party seeks to make it an issue.

MR HUTLEY:   Your Honour, if that is the case, then I would have to seek leave to file an application and the application to be solely on the basis, as good as it is, that this was a matter which the Court expressly determined not to deal with, did not deal with and therefore dismissed it, because it was unnecessary to deal with it.  Therefore, it is not a matter which has ever been – we have never had the appeal considered.  In our respectful submission, the Court would allow the filing of an application, grant a leave to cross‑appeal on it and send it back for determination, were that required.

Can I give your Honours reference to the approach taken in this Court in Cornwell v The Queen 231 CLR 260. As we understand it, there was not there an application for leave to cross‑appeal, the Full Court has simply not dealt with the relevant issue and it was remitted for determination as part of the order setting aside it. If the filing of that paper were required, it would solely be – I tell your Honours now, we seek leave to appeal against the dismissal because the point was not taken and it needs to be remitted. It would not be a matter which your Honours would consider as to the merits, because there has been no occasion for consideration of the merits. I could not say that the Full Court was wrong in the sense of, for any reasons, they just did not determine, because they did not need to do it, to dismiss it.

We just say the point, if there be a point – and I accept if there is a point – is a point of form over substance.  We just have not had the full determination of that question and that was appropriate in the circumstances because we were wholly successful and nothing in that cross‑appeal would add to relief granted.  That is why we did not.

So, if there was a need for application for leave to cross‑appeal, I accept full blame for that.  It was for me to know that, it did not occur to me and there can be no prejudice, and it would go as a matter of course since the point is we have simply never had an appeal right in respect of that issue determined in any court.  That is all I wanted to say, your Honour.

Those are our submissions, your Honours.

KIEFEL CJ:   Yes, thank you, Mr Hutley.  Mr Begbie.  Mr Hutley, I think it is as well for you to file your application and consideration can then be given to the matter.

MR HUTLEY:   Thank you.

MR BEGBIE:   Your Honours, can I start with considering section 340 as a civil remedy provision.  This Court is very familiar with such provisions, and it is important to recognise that in this regime what we see is something that really forms part of the broader general law of Australia, which is comprised of civil remedy regimes across many statutes. 

If your Honours would go to Commonwealth v Director, Fair Work Building Industry Inspectorate – which is at joint bundle 4, tab 25 – to locate this regime in that general body of civil regulatory law, your Honours will see at paragraphs 16 and 17 the description of:

typical of civil penalty provisions enacted by the Commonwealth –

going right back to the Conciliation and Arbitration Act  (Cth) which is, indeed, where we find the very first general protections‑type provisions, and the development of that kind of regime over the next more than 100 years, which brings us through to paragraph 23, bringing together the description of that overall history.  At the end of that paragraph, the plurality said:

In each case, however, the form of the civil penalty provisions is essentially similar.

and then described in paragraph 24 the essential similarity.  We say that is a neat description of this particular regime and it exhibits all of the features described there, and it is common to civil penalty regimes generally.  That means that the statements of general principle about the purpose of these regimes applies, of course, equally to the general protections provisions we are looking at now, and your Honours of course made such statements in Pattinson only recently – and paragraphs 9 and 66 are among many paragraphs that make that point.

Now, most of these civil regulatory regimes are dependent on proceedings being brought by a regulator.  One difference of this regime which has led to the proceedings being run the way they are is that an interested person can be the applicant for such relief.  That, however, does not alter the fundamental scheme or the fundamental purpose of the scheme, as is apparent from schemes considered in Commonwealth v Director, Fair Work Building and in Pattinson, that being the Fair Work Act also.  So, all of what I am about to say about the way in which civil penalty provisions are understood and construed and what their purpose is, is squarely applicable to the particular provisions we are looking at here.

What that prism does is assist to answer some of the submissions that Qantas has made to the effect that you must read down section 340(1)(b) by reference to other provisions in the Fair Work Act, and I want to deal with that at three levels.  The first is the most specific one.  You will recall Qantas has said that 340(1)(b) – what it describes as the “prevent” limb – should be read more narrowly so that it is not easier to prove a “prevent” case than to prove what it calls a “because” case, under 340(1)(a).  There is no statutory foundation for that at all, your Honours.

This is a common drafting device in civil penalty provisions where multiple limbs, multiple alternatives are set out.  The purpose of that is to avoid gaps and to ensure proper coverage of the subject matter Parliament is concerned to make a protection for.  We see that in the actual provisions because when you look at the relief, it is able to be obtained, it is identical, of course, whether you pursue a case under (1)(b), or any of the limbs of (1)(a), or any other part of this chapter.  When you look at the way in which this Act – and I will come to this in a moment – prioritises different types of proceedings, or different applications for relief, you will find no such provision that prioritises any of these limbs, so they are completely on a par, with respect.

One important indication of this is section 556.  If your Honours would go to that in the version of the Act that we are looking at – I think it is in tab 5.  That provision is an express acknowledgement that conduct might breach – the same conduct might breach multiple limbs, or multiple civil penalty provisions, and it ensures that a person will not be penalised twice because what has previously been called the accidents of legislative history, but it builds within it a recognition that all of these are a piece, so to speak.  They are not one more important than another, and you prioritise this one, or penalise this one or that one; they are all the same.  So, your Honours will not accept that submission about reading down 340(1)(b) in that way.

The second point is to step back a little bit and look at Chapter III more broadly.  This is Qantas’ point about unfair dismissal proceedings.  Again, that ignores what is being done here.  This is a civil remedy provision, a key purpose of which is to secure deterrence.  The fact that there might be, in some particular circumstances, some degree of overlap between this kind of case – that is, a 340 case – and an unfair dismissal case, on the facts, does not deny that purpose and it is no reason for reading down 340.  Quite apart from that, of course, the regimes are entirely different as to who they are targeted at, what the tests are, what the relief – when I say, “entirely different”, I do not want to overstate it.  There is overlap, of course, but the debate is directed to quite different things when you look at the statutory language.

STEWARD J:   It is, arguably, somewhat peculiar, though, that in the case of unfair dismissal – an adverse action which is dismissal, or which will lead to dismissal – that the Act accepts that genuine redundancy is acceptable policy but not elsewhere.  We have to work out a harmonious way of reading all these provisions and it just strikes me as potentially odd.

MR BEGBIE:   We accept, your Honour, there are, in a sense, lots of places in an Act like this which is dealing with the extraordinary complexity of workplace relations.

STEWARD J:   Do I take it that it is just an accident of history, as you say, because all these provisions are now manifested in this current Act.

MR BEGBIE:   That is so.

STEWARD J:   Yes, all right. 

MR BEGBIE:   That is so.  One point which I will come to in a moment is that question of history and where the general protections stand in that history.

Can I take your Honours to some provisions which are important to explain Parliament’s conscious treatment of how these are to be prioritised, as between unfair dismissal and general protections.  If your Honours go to volume 2, section 725, on page 546.  This deals with a prioritisation of proceedings in relation to dismissal matters, and you will see that if you have made an application or complaint of one of those kinds, you cannot make the other one.  Your Honours will see at 728 that that includes the general protections court applications, and at 729, the unfair dismissal applications.  So, there is a Parliamentary treatment of that topic, which further reinforces, if that be needed, that you do not read down the general protections by reference to unfair dismissal. 

The final stage is to step right back to Qantas’ broader point about the architecture of the Act, and the way it puts this is that because workplace rights are created and protected and preserved elsewhere, you should be reading down section 340 so as to not, so to speak, step on the toes of that general architecture.  We say, in fact, it is the complete opposite.  This is a regime which is intended to support that architecture, to make sure it is not subverted.  Let me just develop that briefly.

The first thing is that, as with the unfair dismissal proceedings, the fact that conduct is regulated by provisions in different ways does not mean that you have to massage them so that there is not overlap.  That is just not how civil penalty regimes work, and a good example is director’s duties.  There are all sorts of things that corporations must not do, it would be unlawful to do them, but a director can be liable, also, for failing to prevent that.

There is no statutory basis for Qantas’ own classification in its written submissions into what it calls primary and secondary remedies.  It treats things like the protections in Part 2‑3 as primary remedies and general protections as secondary remedies, but you will find no statutory justification for that.  In fact, quite the opposite, because civil penalties do crop up right throughout all of those parts.  Very often, you will see that they have exactly the same status, for reasons I have already discussed.

Coming back to your Honour Justice Steward’s point, you certainly cannot get from the statutory history a suggestion that the general protections are a secondary add‑on designed just to fill a few gaps that might arise.  It is quite the opposite, and I will not have time to take your Honours through that, but in summary, this is a history that goes back to 1904, and you will see as you step through each iteration of the general protections what is, in effect, an enlargement.

It is an enlargement as to who it applies to, it is enlargement as to the rights it protects, and it is an enlargement – importantly, for this case – as to questions of time; the temporal nature of those.  And so, going back a long way, right back to 1920, you will be seeing that there are provisions which prevent people proposing to do things, and necessarily future‑directed activity, and there are prevent‑type provisions.

That progressive enlargement was recognised in the explanatory memorandum, which is relevantly set out in the Full Court’s reasons at paragraph 112.  If I can just tell your Honours where to find that history in the material.  It is dealt with by the Full Court at paragraphs 107 to 112 – paragraphs 121 to 122.  Where there are gaps in that, we have filled them in, in the joint bundle of authorities at tabs 8, 9, 12 16 and 17.

I should at this point, your Honours, just correct a small error, but I do not want to leave it unaddressed.  In our written submissions at 56 we made the point, incorrectly, that these were initially criminal provisions.  They are styled as offences in many of those earlier Acts, and they were, indeed, treated by courts as offences, at a practical level, for many years.  But the decision of Gapes, which this Court picked up in Commonwealth v Director, Fair Work Building Industry Inspectorate in paragraph 17, which I have already referred your Honours to, the decision of Gapes clarified that these have been, in fact, civil remedy provisions.  It was talking not about the general protections, but about other so‑called defence provisions in the Conciliation and Arbitration Act. 

So, where that leaves us in relation to Qantas’ arguments about reading down these general protections, is that they are not something to be moulded, just to plug holes that might otherwise crop up.  They are foundational provisions, and they are intended to support the balance that the Act sets up.  That is the architecture of the Act – to have a carefully calibrated balance as between all of the participants.  What these provisions do is deter those participants from being motivated, or having a purpose, or seeking to achieve an outcome which would be contrary to that balance.  They are, very aptly, called general protections, and that is the protection they afford.

That brings me to the second half of what we were going to say, which is to deal with the question of section 341 and the concept of workplace rights.  The Minister says that the Full Court was correct to reject a contention that section 341 builds within it a requirement that rights be presently exercisable – or, in the language that is now being used, “presently existing” – and it was correct to find that temporal questions are to be found elsewhere.  In this case, relevantly, particularly section 340.

The starting point for this is a point your Honour Justice Edelman raised yesterday about the language of rights.  That has come up in questions today, and we think it is important to be clear about the ambiguity that exists if one simply refers to rights.  I will start with an example, which is the familiar example of a right to strike someone in self‑defence.  You must draw a distinction – and I will explain how this Act does it – between the holding of a right and the exercise of a right. 

In ordinary language, it is natural and common to speak of any person having a right to strike in self-defence.  That is a right that they, so to speak, carry about with them.  That is the holding of the right.  I mean, if we want to put it in the language of this statute, they are “able” to strike someone in self‑defence, or “entitled” to strike someone in self‑defence.

EDELMAN J:   They have a privilege.

MR BEGBIE:   I beg your pardon?

EDELMAN J:   They have a privilege. 

MR BEGBIE:   Indeed.  My point, as I will develop it, is that it does not matter, in a sense, what word we use for this purpose.  What happens, of course, in factual and legal reality, is that certain occasions will trigger the opportunity to exercise that right.  You do not have an opportunity to do it, unless you come under threat, or you are attacked yourself.  So, the exercise of the right depends upon an event, and it depends upon the event being of a particular kind.  If you are restrained by a policeman, you cannot do it; if the force is trivial or inconsequential, you cannot do it. 

So, there is a natural and simple way of speaking about a person having a right in a present, continuous way, even though, as they carry it about with them, they cannot do anything with it until the occasion presents itself.  I am using that example, not because I am trying to say that is exactly what “workplace rights” means in this Act, but just to put a spotlight on the language.  What it shows is a point that is very well‑recognised, which is that there is no settled conception of rights which requires some necessary bare minimum of capacity or entitlement to exercise them.

We have included Black’s Law Dictionary at volume 9, tab 57 – could I take your Honours to that.  The second paragraph on page 2302 commences with this statement by Roscoe Pound: 

“It has come to be well understood that there is no more ambiguous word in legal and juristic literature than the word ‘right.’

Over the page, at the very top, from the American case law: 

“[T]he word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion.

Then, your Honours can then step through the some 30 to 50 ways in which rights can commonly be legally used.  We would draw attention as possibly most relevant to this case, “accrued right”, “conditional right”, “contingent right”, “immediate right” – over on page 2036 – a “present fixed right of future enjoyment” – which refers you to “vested right” over the next page – and so on.  I do not need to labour it.  Your Honours will see the great variety of ways in which rights could be described; the ways in which they could be delineated, should Parliament choose to do that.

When we turn from that, what I will call general language of rights, to the actual provisions, what we see is that in 341, Parliament has eschewed any attempt to deal with those kinds of questions.  It has limited itself to what I might call the bare question whether a person is a rights holder and, to pick up your Honour Justice Gageler’s point, you can be such a person because you are entitled to the benefit of a workplace law.  There is nowhere in 341 that tells you that that right must be of any of the kinds in Black’s Law Dictionary.  There is nowhere in that that tells you how exercisable the right must be.  What the argument in this case depends upon is eliding that question of bare holding of a right with a question of its exercisability as a necessary precondition to the holding of the right.

EDELMAN J:   I am not sure it does.  I think the argument is just whether you have the right.  I think it is accepted that you can have rights that are conditional, that have not accrued, that are not enumerated, that are not fundamental, all of these categories, but the question is do you have the right or do you get the right later?

MR BEGBIE:   Yes, and with respect, we would say that is ultimately a question that boils down to how exercisable is it; when is it exercisable?  The way we put it is that the provisions deal with exercise elsewhere.  So, if your Honours go first to 334, which is in the guide – and, of course, we do not over‑emphasise the guide, but it says something succinctly which is made clear in the provisions.  It says:

Division 3 protects workplace rights –

that is, the rights simpliciter:

and the exercise of those rights.

Then, when you go to 340, you see that distinction – and it probably does not matter much, but when one talks about limbs of this provision, another way of looking at it is not, it is two limbs, “because” and “prevent”, but there is a limb which is the holder right limb in (1)(a)(i), and all the rest which are the exercise a right limbs.

So, that distinction is found there in 340.  It is found in 343, the “coercion” provision, which is concerned only with exercise and does not deal with what I might call bare holding.  And in 345, it does make the distinction again – 345(1)(a) talks about what I might say is the bare holding, and 345(1)(b) about the exercise.  So, we say that Parliament has directed its attention to this question, it just has not done it in 341.

When one looks at the statutory language, in our submission, you do not find anything that allows you to say that the word “has” or “is” is intended to exclude what Qantas characterises – not what Parliament characterises – as a time‑bound right.  You can go through all the provisions, all of the forms of leave – annual leave, personal leave and so on – of course, I will not have time to do it, but you will see that each of those are conditioned in all sorts of ways.  They might be conditioned by reference to circumstances of an unexpected kind.  Will I get sick?  Will I get a terrible illness in three years’ time?  I do not know.  Accrual; the giving of notice; providing evidence of illness or pregnancy or whatever it might be – you could just as easily analyse this in a different case and say Parliament has intended to exclude accrual‑bound rights, or notice‑bound rights, or evidence‑bound rights.  The difficulty with all of those analyses is they do not find a home in the statutory language.

Where does that leave us?  We say it leaves us with a provision that is structured this way.  Section 341 is necessarily extremely broad because of the extreme breadth of the subject matter of workplace rights of all the different individuals, all the different laws, instruments, all the different factual circumstances.  It is a very broad gate‑keeper provision.  But what that does not mean is what Qantas seeks to draw from that which is that, now the provision is uncertain, or at large, or that participants in workplaces are under constant threat of contravention, because the certainty – and this comes to your Honour Justice Gordon’s point – the legal certainty built into the statutory provisions comes from the need for intention, motive and purpose, and it comes from the time frames that are built into it.

The practical certainty – and perhaps this is the most important point – is that people are well‑placed to judge why they are doing things.  It does not mean that there does not have to be a workplace right.  A person who is not seeking claims to have been sick does not have that workplace right.  A person that was not a Qantas employee claims to have had the entitlements that were in play in this place does not have that workplace right.

Perhaps most fundamentally, common sense is in play here.  If what we are talking about is a right to be so contingent – so dependent on circumstance, legal steps being taken and so on – that you are really wondering whether they have the right at all, what is going to happen in practice?  What is going to happen is that it will never be shown that someone was actuated to remove a contingent, unlikely, unpredictable form of right, and the discharge of the onus will be very easy.  But that will be a matter for courts to work out in the actual cases.  If this had been a really fundamental problem in the Act, you would have expected to have been taken to the many cases in which respondents were grappling with whether what they had done was a workplace right or not, and your Honours have not been taken to that.

Thank you, your Honours.

KIEFEL CJ:   Mr Begbie, I think Justice Gageler has a question for you.

GAGELER J:   Mr Begbie, I was going to phrase this slightly differently.  You were obviously not going to address this, but if I were to ask you to address at what point does a person hold the right referred to in section 341(1)(b) in respect of protected industrial action, would you give me an answer?

MR BEGBIE:   It would be a qualified answer, your Honour, because one of the problems, we say, with seeking to draw bright lines through these provisions is that they are set up to avoid that.  They are set up to accommodate extraordinary breadth.  But, with that qualification, we would say that a person who is operating under an existing EBA and who, therefore, comes within the provisions of that and the provisions of this workplace law, is a person who is entitled to the benefits of that instrument and that law.

The way the balance has been set up in this Act is to say that during the EBA, the parties will understand their positions and they must not, so to speak, break faith with that deal, but they will get a chance to do things at the end of that, and that chance is part of the benefits that this workplace law – this calibrated balancing – affords them.

STEWARD J:   That is the answer under (1)(a).

MR BEGBIE:   I am sorry, your Honour was talking about (1)(b)?

STEWARD J:   Section (1)(b).

GAGELER J:   Yes, I am talking about (1)(b), which is the provision in play in the present case.

MR BEGBIE:   I am sorry.

GORDON J:   In other words, this case ‑ ‑ ‑

MR BEGBIE:   Sorry, is your Honour ‑ ‑ ‑

GORDON J:   This case was not decided under (1)(a).  This case was decided under (1)(b).

MR BEGBIE:   I thought your Honour said 340(1)(b).

GAGELER J:   No, 341(1)(b).

MR BEGBIE:   I am so sorry.  We, I think, would still say that when you are talking about an ability to do something, you can be talking about an ability of the kind that I was fleshing‑out with the self‑defence example – that is, there is a natural reading of an ability which does not depend upon, or carry with it, an immediate an ability – an ability right now.

KIEFEL CJ:   Mr Begbie, the Court is about to have its morning break.  Would you like to consider this question whilst it does so?

MR BEGBIE:   Yes, I would, your Honour.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn for 15 minutes.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ:   Yes, Mr Begbie

MR BEGBIE:   Your Honours, we have, so to speak, firmed up on the answer I gave more tentatively before the break.  We say that “is able” is like the words “entitled” in paragraph (a), which is the paragraph I spoke to.  It does not require some bare minimum entitlement of immediacy as to the exercise, so that when this provision asks whether you are a person who is able to:

participate in, a process or proceedings under a workplace law or workplace instrument –

The answer is yes, you are such a person if, by virtue of your existing workplace instrument, the provisions of this workplace law will come to apply to you, with respect to nominal expiry date, PABO, PIA, and so forth.  If I might add, one of the reasons why provisions like 340 are drafted with a variety of limbs is because there will be limbs that are more apt to particular factual circumstances.  And so, in the scenario your Honour Justice Gageler posits, it may well be that a future-directed limb is the more apt one, rather than the bare holding limb, prevent, or someone who has proposed to exercise or proposed not to exercise, that entitlement in the future.

GLEESON J:   You do not really need the future limb on your broad construction of section 341(1)(b), do you?

MR BEGBIE:   On this particular example?

GLEESON J:   It seems to me that if it “is able” means might be able at some point in time, then you would not need to identify alternatives that include propose or proposes not to.

MR BEGBIE:   In some factual circumstances that is right, your Honour.  And can I say, equally, if Qantas’ construction is right, then in most factual circumstance you might only need the “has” limb.  On its construction, once you have a right, the limb that maps onto that is (1)(a)(i), but the difficulty

is that these are, of course, provisions which, as I say, as is obvious, apply to an extraordinary variety of persons and circumstances.  And the difficulty with trying to say this is needed or not needed by reference to one, or two, or three, or ten examples, is that it overlooks the thousands of others.

GORDON J:   Mr Hutley drew a distinction, factually, between proposes and prevents, in the sense that proposes might be a proposal in the future, but prevent is, in effect, directed at not whether or not there is a proposal or not, you are just, regardless of what the position, you are preventing someone doing something.

MR BEGBIE:   Yes, or even more specifically, seeking to prevent them – you might fail.

GORDON J:   Correct.  I wonder whether your answer to Justice Gleeson was contrary to that.  It is not?

MR BEGBIE:   No.

GORDON J:   Thank you.

KIEFEL CJ:  Thank you, Mr Begbie.  Reply, Mr Gleeson?

MR GLEESON:   Your Honours, there is a road map.  Could I organise our reply around four main topics and then some subsidiary topics?  The first main topic is the matter the Court has just been addressing, which is what is the scope of section 341, particularly paragraph (b) and the present case.  Over the course of the last day and a half, a significant difference has opened between the parties on that question.

I will try and deal with that first.  The second topic is how section 341, once it is properly understood, interacts with section 340.  The third topic is questions of onus under 361, certainty and the application of Greater Dandenong.  The fourth broad topic is the relevance of architecture.

As to section 341, our answer radically differs from that which the Minister just gave and which Mr Hutley gave this morning, which firmed up from his answer yesterday.  We say that under section 341(1)(a), (b) and (c), to have the right you must have the entitlement or the ability which is described in the provision.  And, focusing on ability, it is a present ability to do the thing that follows in the condition.  And, accordingly, one will need to look at the provision of the workplace law, or the instrument or the order to find out whether you have the entitlement or the ability.  If you do, you have the right; if you do not, you do not yet have the right, even though you might in the future.

Now, the Minister’s submissions that you find the answer to the present case in Black’s Dictionary, we submit, is inapposite.  You find the answer in section 341 when read together with the relevant provision of the workplace law, instrument or order.

The particular context of paragraph (b) and PIA and to particularly answer your Honour Justice Gageler’s question, a person does not have the ability – certainly, during the period when the action is unlawful under section 417, you cannot be said to be able to participate in PIA during the enterprise agreement when that activity is unlawful and restrainable by injunction and the subject of a civil penalty contravention.

To the extent the Minister has just submitted to the contrary of that, we would ask your Honours to reject it.  Once the EA finishes, during the period in which the various conditions in section 409 await satisfaction, subject to a small nuance at the final margin that I will explain, you again do not have the ability.  You do not have the ability, because the action is defined as not yet protected action and would be restrained under section 417 – 418 upon an order being requested.  The small nuance is this:  once the ballot is successfully passed, under section 459, that authorises a period of 30 days as extended by the FWC in which you can carry on the action.

The only step remaining before it becomes lawful to carry on the action is section 414, which is to give the three days’ notice.  Because of the terms of section 414(1), it rests in the ability of each employee to compel the giving of that notice because the employee can always control their bargaining representative under section 176 and appoint a new one.  So, it is just possible, although practically of no moment, that after the ballot is passed you might say, while the action still is technically unlawful and technically could be the subject of a 418 stop order, it is now like accrued leave ready to be taken – all the employee has to do is ensure the notice is given, and once it is given it becomes wholly lawful.

Whatever view is taken of that tiny nuance, there certainly is no ability, we would say, prior to that very end point.  And, of course, your Honours, under section 415, which is the correlative provision for PIA, you get your immunity from State or Territory laws once it becomes protected industrial action, so once you meet every condition of section 409.  So, you have to have given the notice, which is in your control, to get freedom from 418 and to get protection under 415.

That is our specific answer to your Honour’s question.  The more general answer is that the ability must be an ability – a present ability which can be identified in the workplace law, order or instrument.  Your Honours, there is one decision of the Full Federal Court that has grappled with this question at the general level.  We have given your Honours’ associates an extract from the Full Court decision in Cummins South Pacific v Keenan 281 FCR 421, decision in November 2020.

Justice Bromberg in the majority at paragraphs 33 to 34 identified that in paragraphs 341(1)(b) and (c) the ability must be, as the words express, a present ability that the person holds or possesses.  Justice Mortimer agreed at paragraph 207, and we support that as a correct statement of the law.

EDELMAN J:   That is not to say that there are no relevant workplace rights concerning protected industrial action.  It is just to say that the protected industrial action itself is not the workplace right.

MR GLEESON:   Exactly, your Honour.  And so, when one looks at a different right, which is the ability to initiate or participate in the ballot, one does the same exercise to see whether that is something you are able to do having regard to the conditions of the law.  The statement in Cummins was approved by a later Full Court in 2021:  Alam v National Australia Bank, which is on Mr Hutley’s list this morning.  It is approved, we have handed this up at paragraph 85.

This decision, that is Alam, also discusses the matter your Honour Justice Steward raised yesterday about whether paragraph (c) requires identification of a provision under an instrument from which you get your rights to complain.  And that question, as your Honour put in argument, is not wholly settled in the Full Federal Court.

We agree on this point with Mr Hutley that your Honours will not need to resolve that sub‑question in this case.  What is critical, is that the more general concept of being able to do something because, in the present sense, you satisfy the condition, applies to paragraphs (b) and (c) as the Full Court has held in both cases.

Your Honours, that brings me to the second topic, which is how section 341, so understood, intersects with section 340.  The difference between the parties, if I can crystalise it, is this, we do not seek any form of reading down as the Minister suggests.  We do seek it to be read harmoniously with the balance of the Act, of course, but where one sees a “workplace right” on each occasion that it appears in section 340, it has the same meaning which has been given via section 341.  The meaning does not differ between the different limbs, although the different limbs operate upon that same concept in their own way.

As the argument was shaken down, the parties do not disagree about paragraphs (a)(i) or (a)(ii).  Paragraph (a)(i) is about adverse action for the reason that the person has the workplace right under 341, in the present case, has the ability to initiate or participate in the process.  Paragraph (a)(ii) is about the reason being the person has not exercised, in the past, a workplace right which they had in that sense.  The only dispute between the parties is that within (iii) – which, in turn, has two sub‑limbs – the second sub‑limb, which is about past proposals, or not, to exercise a workplace right, by definition must be employing the same concept under 341.

The dispute is that in the first limb, proposes or proposes not to exercise, Mr Hutley would open the frame so that, for this purpose, the workplace right to which the limb attaches can be either one which satisfies section 341, or might at a future date satisfy section 341.  And that leads to the difference between the parties under (b).

We read (b) as being a workplace right which is in existence in the sense that there is the entitlement or ability under 341.  Mr Hutley says it includes that.  But it goes further to workplace rights which do not yet satisfy 341 but may do so in the future.  And we commend as clear and certain and consistent with the text to give workplace right the same meaning throughout the whole of 340 and not a variable meaning.

EDELMAN J:   I take it that you differ also from the Minister in relation to whether or not “workplace right” in 340(1)(a)(i) effectively subsumes (2) and (3) on the basis that (1) also needs to identify the relevant purpose?

MR GLEESON:   Yes, and the purpose could be different.  It would be a possible case where I do it because you have it; it is a different case, I do it because you chose to exercise or not exercise it.  So, a classic case where a union sanctions a worker for not participating in otherwise protected industrial action, it is about the worker not exercising the right under (a)(ii), not about (a)(i).  Your Honours, as to the third topic, could I ask the Court to go back to section 361, as to how the onus comes into this question:  “certainty” and Greater Dandenong.

A submission was made yesterday that all the problems in these sorts of cases can be solved – this is transcript 63 to 64 – because the alleged wrongdoer has the pleading.  The pleading will identify the reason – it is just a matter for you to get in the box and convince the Court that was not your reason.  That tends to overlook this.  If your Honours have section 361, it will operate rather differently on our view of “workplace rights” to the respondent’s view.  On our view, because there must be a “workplace right” which satisfies 341, the onus will be on the plaintiff to prove there is a “workplace right” and the 341 conditions are satisfied.  What the plaintiff can then do is assert that the action was taken for a relevant reason or intent.  The plaintiff gets the benefit of the presumption that that was the reason or the intent, provided that reason or intent would constitute a contravention of the Part.

That means the question still remains for the Court as a matter of law whether the asserted reason is in fact a prohibited reason under section 340.  That is our view of how the onus works.  Once you extend section 340 to allow for workplace rights that do not yet satisfy section 341, all the plaintiff has to do is say, you took certain action against me, I allege your reason, or your intent was – for example – to prevent me in the future exercising a right which does not yet exist but might exist.  Once that is the exercise, then the plaintiff says, as happened in this case, the reverse onus is now thrown on you in respect to that entire question whether your mind was directed to preventing something which may or may not ever come into existence.

When I said to your Honour Justice Gleeson yesterday that we say paragraph 282 has an error of law in it, what is compressed in the way the question is asked is an acceptance of Mr Hutley’s argument that the reverse onus operates in that broader sense.  As soon as they allege, your reason was to prevent me engaging in PIA in the future, which is not yet available to me but might in the future, the entire factual inquiry becomes, can the employer disprove that is their reason, whereas, on our approach, the reverse onus attaches to the narrower question, given there was – proved by the plaintiff – a workplace right which satisfied 341, was your reason to prevent an exercise of that right?  So, they are radically different and, we would say, a radically more uncertain approach to section 361, depending on the ultimate question in the case.

GORDON J:    Do you accept on the construction put forward which you challenge that the plaintiff would still have to identify what the right was – what the workplace right was that was prevented?

MR GLEESON:   The right which may come into existence ‑ ‑ ‑

GORDON J:   Correct.

MR GLEESON:   ‑ ‑ ‑ in the future, which might be prevented, which is what the plaintiff did do here ‑ ‑ ‑

GORDON J:   Correct.

MR GLEESON:   The plaintiff said, you took this action ‑ ‑ ‑

GORDON J:   So, the inquiry is not at large.  The inquiry is still asking whether or not that was the reason.

MR GLEESON:   The reason, but what the reason is attached to is a much more open‑ended question.  Was the reason that you sought to prevent the exercise of that thing which may or may not come into existence in the future?  Once you open it in that frame, that is why you are forced to the Full Court’s adoption of the notion of anticipation.  When the Full Court says, you only prevent things that you anticipate – this is paragraph 127 – they are opening the frame in this fashion and the reverse onus is being used in this fashion.

Your Honours, the reason I attach Greater Dandenong to this topic is there were some questions yesterday whether Qantas simply lost because of the Greater Dandenong approach to the difference between a cause and a reason.  Qantas ran an argument on that line, it lost it.  It is not re‑run because it is a factual point.

But recall what Greater Dandenong was saying.  Greater Dandenong was saying, there can be cases where your reason is, for example, to save cost, which is lawful, but behind that reason is a cause which is an industrial instrument renders employees more expensive than the alternative.  In that sort of case, the courts have said, provided you believe that your reason is cost and not directed to the underlying workplace right that lies behind the cost, then you do not infringe section 340.

Those cases may be accepted, but they do not solve the problem that we respectfully raise in the present case, because in the present case the problem, in the end – if your Honours could go back to the core appeal book, please, to the Full Federal Court at those paragraphs 10 and 11, on page 153.  I do not go back over our submission that paragraph 11 slightly oversimplifies the case, but let us take paragraph 10 and 11 as the example to test section 340.

Paragraph 10 says in the month of December there is no ability of the workers to exercise PIA against you – there is no workplace right under 341(1)(b), for those reasons.  And we would add, you as the employer have a correlative workplace right under the law to be free from that action during that period.  Indeed, if one wishes to take it that far, the correlative workplace right of the employer, which is an existing right at November and December, would itself be protected under section 340 against adverse action by the employees.

So, you have that existing right, you as the employer, as the correlative of the prohibition upon the employees.  Paragraph 11:  let us assume you are a fully informed employer.  You are informed of paragraph 11, and you take it into account as a reason.  I will make my decision now to take advantage of the right that I have in paragraph 10, a present right, knowing that an inevitable consequence will be that the ability for the employees to acquire a future right to be used against me will be, effectively, eliminated.  It will be eliminated because there will no longer be an occasion for it.

GAGELER J:   Mr Gleeson, I do not quite understand what the existing workplace right of the employer is that you are referring to.

MR GLEESON:   It is the right under the law to the protection of section 417 and then 418, which can be enforced by injunction in the court, to restrain industrial action while the EA is still on foot.  So, you are entitled to a benefit under section 341(1)(a) of the law, the benefit being the ability to restrain that unlawful action which affects your interests.  So, the right, more specifically, is the right under section 417(3) to seek the relief.

GAGELER J:   And that is meaningful, on your submission, to talk about such a right existing, even though there is no industrial action that is being taken?

MR GLEESON:   It is a correlative right.  We know there is a prohibition.  They cannot take industrial action.  The right is, if they do take industrial action, you have the correlative right to restrain it.  That is all I am saying.

GAGELER J:   It sounds pretty contingent to me.

MR GLEESON:   Well, putting in the submission in the simpler form I started with, during December, there is no right in the workers under 341(1)(b), and the ultimate question in the case is, given they have no right which currently satisfies 341(1)(b), are you permitted to take into account as a reason that if you act now when they do not have the right, your opportunities to implement an otherwise lawful decision may be greater than if you are forced to defer your decision. 

GORDON J:   Mr Gleeson, I raised this with you yesterday.  I do not find that very helpful because we know that there is nothing preventing them taking it into account as a reason.  The question is whether it was a substantial and operative reason.

MR GLEESON:   Your Honours, I am putting the submission ‑ ‑ ‑

GORDON J:   In fact, I think on your submission, I think you accepted that it would probably be negligent of the directors not to have taken it into account.

MR GLEESON:   Yes, and I submit it was, because if you shut your mind to implementation risk, that would be negligent.  But my submission is that really highlights the problem of the dividing line that is being urged by the TWU, and this is why I say this goes to certainty.  Their dividing line seems to be you can take it into account.  So, the Board papers can say, the chances of success in implementation are rated better in November than they are by deferring for three months.

Apparently, that is lawful, but what is said to be not lawful is a director saying, I am now going to have four reasons for my decision instead of three; I cannot take this material into account as a substantial and operative reason.  The present facts demonstrate, on the findings, it is the very thing an employer would take into account.  That is our challenge, that to have a dividing line it is lawful to take it into account, but not act upon it as a reason.  It does not satisfy any purpose of the Fair Work Act, and that tells you that this expanded concept of workplace rights to future workplace rights is problematic.  And it tells you, you are not in the territory of prevention, if I may say that.

Your Honours, before lunch yesterday, I put a submission which was on this theme of practicality.  I hope it did not verge on hyperbole, but it was that, if this judgment stands, there is no clear guide to employers contemplating this type of action, or contemplating dismissals within the six‑month or 12‑month protected period.  The dividing line between taking into account and reason is impossible to sustain practically.  The alternative that you have to defer your decision for three months or so suggests whole construction miscarries, and you have not really heard an answer to those submissions.

Your Honours, as to the final matters, can I reduce them to these.  Architecture, I mentioned as a topic.  We are not reading down; we are not urging you to read down; we are urging you to read harmoniously.  The construction we give, we submit, produces that harmonious result.  In respect to section 343, we submit that the respondents have not identified any actual example where there would be negation of choice in respect to a hypothetical exercise of a future right. 

In respect to section 345, the reason I asked the Court, or suggested you not resolve the question, was that you did not need to, in the sense that whether it extends to false or misleading statements about future state of affairs will not affect the strength of our construction.  That will simply be an application of that provision.  In respect to section 351, the ground of discrimination would be sex in addition to pregnancy referred to by Mr Hutley. 

In respect to your Honour Justice Gordon’s questions this morning as to where we stand on different rights in terms of paragraphs 5 and 6 of our outline, can I say that we rely upon what we said in the reply submissions at paragraph 627, which identify the dividing line we draw – sorry, 7 and 8 in reply. 

There will be a very large category of rights, which can be said, sensibly, to be rights which a person is entitled to or has an ability to exercise, even if the precise enjoyment depends on circumstances from time to time.  Those rights – we have given examples there:  overtime, annual leave, community service leave, sick leave.  With every one of those, when you read section 341 in the context of the provision conferring the right, you will see that it is an entitlement that you have.  You either have it for the whole of the relationship or for a defined period in the relationship.  It is something you have, and then, circumstances may depend upon – may influence the precise quantum of the right. 

Both parties mentioned yesterday the Full Court’s decision in Burnie at paragraph 30, where, we submit, the Full Court correctly dealt with this very issue, because the Full Court gave these types of examples and said, you can have a present right to these types of matters, even though the precise enjoyment of it will depend upon future events.  The example the Court gave was the right to overtime.  You have the right, in your instrument or agreement, to be paid at a higher rate if you engage in overtime.  That is an entitlement.  The precise quantum of the right crystallises depending upon the extra hours you undertake.

Sorry, your Honour Justice Gordon, to be clear, these forms of leave that we have mentioned here – overtime, annual leave, and so on – they all fall into the category of rights which are in existence under section 341, and therefore they are protected by section 340.  The community service leave, without going back to the text of it, is also in that category, contra the respondents.  The statue says, as you are an employee, you have the entitlement to be absent from work if the circumstance is triggered.  And that is fully protected by section 340.

Your Honours, in terms of the Minister’s substantive submissions, I have sought to deal with the second topic, which is section 341.  As to the first topic, we are not engaged in reading down, we are engaged in a harmonious reading.  While this is undoubtedly a civil penalty statute, in the end, that provides little to no assistance in terms of constructional choices. 

Your Honours were referred to the Fair Work Building Industry Inspectorate Case, which, of course, was about a wholly different topic:  the extent to which civil penalties could be sought in the area of what are also criminal offences.  But it is a stark feature of this Act – far more than perhaps any of the statutes the Court has dealt with – that the Parliament, for reasons right or wrong, has made almost everything a civil penalty contravention.   You will even see under section 50 that a simple breach of a term of the enterprise agreement is a civil penalty contravention.  So, the entire Act is very much about civil penalties.  In the end, that assists you little in answering the case or in adopting a broader over a narrower construction.  The safer guide is what this Court said in Mammoet at paragraph 48:  it needs to be given a clear and certain construction.

Your Honours, that just leaves me with the question of relief.  Two aspects to that – this is Mr Hutley’s case.  Your Honours should not grant special leave upon an oral application, not just on formal grounds, but because Mr Hutley has not said a word to suggest there is any form of viable appeal ground that it wishes to have determined either in this Court or in the court below.  The reason I say that is, if your Honours go back to how Justice Lee dealt with section 346 – which is between paragraphs 241 and 258, on pages 96 to 98 – this was a wholly different case.  The prohibited reason was that:

the TWU had almost 100% membership among Qantas employees –

In other words, that this was an attack on the TWU and the workers because Qantas did not like this unionised workforce.  That raised an entire factual case.  Your Honours will see all the discussion of it.  At 246, his Honour crystallised that the alleged prohibited reason was that:

the affected employees were members of the Union per se.

Wholly different case.  You see at 253, “Great effort was spent” to run a bad faith case – a lot of cross‑examination.  At 256, you see how “Senior counsel for the Union” sought these rather nasty findings.  At 258, all rejected on the facts.  Now, with no attempt in writing or orally to suggest any error in that factual finding – certainly no suggestion of a legal point – your Honours will not grant a remitter.

Your Honours, the other aspect of relief is the question of the scope of the declaration.  Mercifully, Mr Hutley said he relied upon his written submissions, and so your Honours would be hoping that I will just say, I do likewise.  You will find our answer in our reply at paragraphs 37 to 39, and in those paragraphs – particularly at 39 – we seek to direct the Court to not only parts in the primary Full Court judgment, but parts in what is described as DJ, which is the decision judgment or the reasons judgment. 

If your Honours reach this question, we would invite you to look at that material, because this entire point is answered in the decision judgment.  What happened was, when his Honour came to reasons, the TWU said, they really were entitled to two different types of relief matching what were two different strands of the case below. 

If your Honours have the respondent’s book of further materials, perhaps I need to identify what those two strands were.  It is on page 8 of the book.  Paragraph 1.8 was an independent case that there was a prohibited reason of preventing them initiating or participating in bargaining per se, whereas 1.10 – which is the case that was found, subject to some refinement – is preventing the participating in PAB or PIA following the nominal expiry date – that is, at least for QAL, in 2021 – for the purpose of advancing claims for a proposed enterprise agreement.  So, the reason 1.10 built in the final hook of purpose was that that is the reason under the statute why you are allowed to have PIA, which is to advance claims under an agreement.

So, enterprise bargaining, which is not itself a statutory concept, it is an amalgam of individual concepts, was never an independent thing which Qantas was said to be preventing.  In the reasons judgment, his Honour looked at a detailed argument by the TWU that he should give them an independent declaration with respect to enterprise bargaining and he rejected it.  What he gave them was a declaration which broadly reflected 1.10, the result of which is, if we win, in removing the prohibited reason of preventing participation in PAB or PIA, the whole of the declaration made by his Honour should go.

Unless your Honours have questions, they are our submissions in reply.

KIEFEL CJ:   Thank you, Mr Gleeson.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise until 10.00 am.

AT 12.14 PM THE MATTER WAS ADJOURNED