29.
STEWARD J. This appeal raises difficult issues about whether a business may undertake a commercial restructure, which involves the necessary taking of adverse action (say the dismissal of employees within a particular business division), without contravening the general protection provisions contained in Div 3 of Pt 3-1 of the Fair Work Act 2009 (Cth) ("the FWA"). Here, in 2020, Qantas Airways Limited ("QAL") and its wholly-owned subsidiary Qantas Ground Services Pty Ltd ("QGS"), referred to collectively in these reasons as "Qantas", thought they had an opportunity during the COVID-19 pandemic to rid themselves of an expensive way of undertaking their ground handling operations. This service was to be outsourced, saving QAL around $100 million per year "when things returned to normal" and $80 million of capital costs over five years. Given that QAL's revenues had plummeted since the beginning of the pandemic (QAL had incurred a revenue loss of $20 billion), the attractiveness of outsourcing a costly business division was manifest. But it would involve making the employees in the ground handling operations redundant; that is, it would require QAL to take "adverse action" as defined by s 342 of the FWA against its employees and QGS's employees.
The background to the Transport Workers Union's suit against Qantas
Section 340(1)(b) of the FWA provides that a person must not take "adverse action against another person … to prevent the exercise of a workplace right by the other person". The term "workplace right" is defined broadly in s 341. Relevantly, a person will have a "workplace right if the person … is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument"[1]. Here, that "process" was said to be an ability to initiate or participate in "protected industrial action"[2]. The term "adverse action" is also defined broadly in s 342. It was not in dispute that QAL prejudicially altered "the position of" employees in the ground handling operations when it announced, on 30 November 2020, its decision to outsource those operations to third parties. This constituted "adverse action" for the purposes of item 1(c) of s 342(1) of the FWA. So too did the eventual dismissal of the ground handling employees.
Section 340(1) of the FWA should be set out in full. It provides:
"A person must not take adverse action against another person:
(a) because the other person:
- has a workplace right; or
