Gordon J
Edelman J
24.
"initiating" – any process of the kind to which s 341(1)(b) of the Act is directed[1]. If the person contravenes that prohibition, the Federal Court or what is now called the Federal Circuit and Family Court of Australia may grant an injunction or make any other relevant orders that the court considers necessary to stop, or remedy the effects of, the contravention[2].
As noted, at the time of the outsourcing decision, the Qantas Ground Services Pty Ltd employees were in a different position because the nominal expiry date of the applicable enterprise agreement had passed. Although any industrial action by those employees was no longer prohibited under s 417, it would not acquire the status of protected industrial action which has immunity under law[3] unless and until the necessary procedural steps had been taken[4].
Put in different terms, it cannot be said that a person is able to initiate or participate in that which is prohibited[5] or that which they are unable to lawfully do – here, to engage in protected industrial action. The affected employees did not have a presently existing "workplace right" within the meaning of s 341(1) to engage in protected industrial action at the time that the outsourcing decision was made.
Qantas' second contention
That conclusion, however, does not answer Qantas' second contention, which is that s 340(1)(b) is concerned only with prohibiting the taking of adverse action against a person to prevent that person from exercising a presently existing workplace right.
- ↑ cf Fair Work Act, s 438 dealing with an application for a protected action ballot order which must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement.
- ↑ Fair Work Act, s 417(3) read with s 545(1).
- ↑ Fair Work Act, s 415.
- ↑ Unless protected, industrial action can have a range of civil consequences. Those consequences include that, if it appears to the Fair Work Commission that industrial action by one or more employees that is not or would not be protected industrial action is happening, is threatened, impending or probable, or is being organised, the Commission must make an order that the industrial action stop, not occur or not be organised: Fair Work Act, s 418(1). A person must not contravene such an order: Fair Work Act, s 421(1).
- ↑ Fair Work Act, s 417(1)(a).
