In August 2021, Holman Webb published an article highlighting the decision in Transport Workers Union of Australia v Qantas Airways Limited  FCA 873, in which a single Judge of the Federal Court of Australia found that Qantas had engaged in adverse action in contravention of the Fair Work Act 2009, in deciding to make its ‘below the wing’ staff redundant.
The Trial Judge found that Qantas could not prove a negative - that the substantive and operative cause of the airline’s decision to make the staff redundant was not to prevent the workers exercising a workplace right. The workplace right was identified as the ability to negotiate a new Enterprise Bargaining Agreement in the 6 months following the redundancy.
Qantas appealed that decision, and the appeal has now been determined. The Full Court of the Federal Court delivered its judgment in the matter of Qantas Airways Ltd v Transport Workers’ Union of Australia  FCAFC 71 on 4 May 2022, dismissing the Appeal.
Substantial and Operative cause
The Full Court of the Federal Court accepted and upheld the underlying findings of fact of the Trial Judge. It held that Qantas did not discharge the reverse onus, and could not disprove that the substantial and operative cause of the decision to make the worker redundant was to avoid the need to negotiate the forthcoming Enterprise Bargaining Agreement.
Consequently, despite the assertions made by Qantas that the decision was made for business operational reasons, the Court found against it..
The Court did say that if the evidence shows that the person who made the decision had not anticipated that the worker had the workplace right, then there could be no adverse action. However, the facts did not support that position in this case.
Time of existence of workplace right
More interestingly, the Full Court was asked by Qantas to address another point which had not been argued at trial - when the entitlement to the workplace right needs to exist.
Qantas argued that at the time the adverse action was taken, there was no entitlement to the workplace right. This was because the existing Enterprise Bargaining Agreement had not expired, and the right to negotiate the new Enterprise Bargaining Agreement had not started. Qantas said, therefore, that the legislation could not have been breached because there was no workplace right in existence at that time.
The Full Court disagreed.
In dismissing this part of the Appeal, the Full Court said that the nature of Qantas’ argument was, when properly considered, not consistent with how the legislation is intended to operate - either purposively or textually.
The Court said that the protection afforded to the workers was that Qantas must not take adverse action against them, and that to interpret the legislation in a way which would mean that the adverse action could be taken if the right did not yet exist, subverted the intention of the legislation.
The Full Court went to great lengths to explain why Qantas’ argument was not maintainable. In the joint judgment of Bromberg, Rangiah and Bromwich JJ, the Court determined that whilst there is a temporal connection expressed in ss.340 and 341 of the Fair Work Act 2009, the textual meaning and purpose of the legislation is that even if the impugned workplace right did not actually exist at the time of the adverse action, if it may exist at some future point, and the person is prevented from exercising it, and the contravener is aware of it, there would be a breach.
There may well be an application for Special Leave to Appeal to the High Court, and we will need to wait for the outcome of any such application.
Implications of the case
The case of Qantas Airways Ltd v Transport Workers’ Union of Australia  FCAFC 71 serves as a reminder that it is the employer’s obligation to show that the substantial and operative cause of its decision was not for one of the prescribed purposes (i.e. to avoid the exercise of a workplace right); even if that workplace right does not exist at the time of the decision, but may exist at some future point in time.
If you have a query relating to any of the information in this article, or would like to speak with someone in Holman Webb’s Workplace Relations Group in respect of a separate matter – please don’t hesitate to get in touch today.