Examining the case of Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27
On 13 September 2023, the High Court ruled that the outsourcing of ground handling at ten Australian airports was unlawful. Outsourcing is not something that in and of itself is unlawful, so why did the High Court decide it was in this circumstance? The High Court stated that the outsourcing was unlawful because it was an adverse action taken against the Employees to prevent them from exercising a genuine workplace right. Qantas had announced the outsourcing during a time when half of their workforce’s enterprise agreement had expired, meaning they could not engage in protected protest.
Qantas argued that because the enterprise agreement had expired, (which previously allowed employees to engage in protected protest) that no workplace right existed for protected protest, when they announced the outsourcing, and because no workplace right existed, they couldn’t have prevented the Employees from anything.
However, the High Court decided that workplace rights are inherent in the Employee, Employer relationship. Instead, the exercising of the right may be contingent on a particular condition or an amount of time passing. For example, the Workplace right to be absent from work for Jury Duty is contingent on the employee having Jury Duty.
So what does this mean for employers? The Court stated that if the Workplace right is one that MIGHT exist in the future, then taking adverse action to prevent the Employee from exercising the right is unlawful. Ultimately, the decision encourages a wider interpretation of what a ‘workplace right’ is, and now includes rights the employee may have in the future.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
