Gordon J
Edelman J
23.
Two examples of the former type of workplace rights are an employee's entitlements to take annual leave[1] and paid personal/carer's leave[2]. These entitlements are contingent upon being accrued and being claimed. So, for example, s 87(2) of the Act provides that "[a]n employee's entitlement to paid annual leave accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year"[3]. Even before the entitlements to take annual leave and paid personal/carer's leave have accrued, it is not difficult to say that these entitlements which "accrue[] progressively during a year of service" are an immediate benefit to which an employee is entitled under a workplace law within s 341(1)(a). Indeed, that view is reinforced by the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) which states that "benefit" in s 341(1)(a) is intended to include benefits that are "contingent or accruing"[4].
However, there is a distinct difference between, on the one hand, presently existing but contingent entitlements, and, on the other hand, a thing, action or activity which is unlawful or positively prohibited under pain of civil penalty. There is no power or entitlement to do something that is positively prohibited or unlawful. That is not a benefit to which a person is entitled under s 341(1)(a). Nor is it a process or proceeding that a person is able to initiate or participate in under s 341(1)(b).
By s 417, the Qantas Airways Ltd employees were prohibited from organising or engaging in industrial action because the nominal expiry date of their applicable enterprise agreement had not passed. As a matter of construction, it is not open to say that the prohibition in s 417 is a "benefit" to which a person is entitled within the meaning of s 341(1)(a) of the Act. The prohibition in s 417 does not in terms meet the description in s 341(1)(b) of a workplace right, being a process or proceedings under a workplace law or workplace instrument that a person "is able to initiate, or participate in" (emphasis added). Under the s 417 prohibition, a person is not "able to initiate" – they are prohibited from
