Qantas Airways Limited v Transport Workers Union of Australia

The High Court of Australia considered an appeal by Qantas Airways Limited against a decision concerning adverse action taken against its employees. The dispute arose from Qantas' decision to outsource its ground handling operations, which the Transport Workers' Union of Australia argued constituted adverse action against affected employees under the *Fair Work Act 2009* (Cth). Qantas contended that at the time of its outsourcing decision, the affected employees did not possess a presently existing workplace right to organise, engage in protected industrial action, or participate in enterprise bargaining, and therefore, section 340(1)(b) of the Act, which prohibits taking adverse action to prevent the exercise of a workplace right, was not contravened.

The central legal issue before the High Court was whether the prohibition in section 340(1)(b) of the *Fair Work Act 2009* (Cth) extended only to adverse action taken to prevent the exercise of a presently existing workplace right, or if it also encompassed adverse action taken with the substantial and operative reason of preventing the future exercise of such rights. The Court was required to interpret the meaning of "prevent" in the context of section 340(1)(b) and consider whether Qantas' decision to outsource, made in contemplation of future industrial action and bargaining, fell within the scope of the prohibition.

The High Court reasoned that section 340(1)(b) is contravened if a person takes adverse action against another person for a substantial and operative reason of preventing the exercise of a workplace right, irrespective of whether that right currently exists at the time the adverse action is taken. The Court held that Qantas could not avoid the operation of section 340(1)(b) by taking its outsourcing action prior to the existence of the workplace rights that Qantas sought to thwart. The legislative history and the text, context, and purpose of the provision supported a broad interpretation that protected against actions aimed at preventing the future exercise of workplace rights.

The appeal was dismissed.