In the case Qantas Airways v Transport Workers Union of Australia [2023] HCA 27, the central question on appeal for the High Court was to determine whether Qantas’ decision to outsource its baggage handlers was a contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (FWA).
Finding that Qantas’ decision did in fact contravene section 340(1)(b), namely by sacking its workers before they had the opportunity to take industrial action against the proposed outsourcing, the Court emphasised the provision’s wide-reaching application. In essence, the Court identified that the relevant employees were only required to have a workplace right – it was irrelevant whether they had exercised it by the time Qantas made its outsourcing decision.
Further and for completeness, the Court regarded Qantas’ reason for outsourcing jobs to prevent the employees from taking industrial action was a substantial and operative reason for its decision to sack them.
To that end, an employer will be guilty of contravening section 340(1)(b) of the FWA if it sacks an employee where the substantial and operative reason for doing so is to prevent the employee from exercising a present or future workplace.