Steward J
30.
- has, or has not, exercised a workplace right; or
- proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person."
The Transport Workers Union of Australia ("the TWU") commenced proceedings in the Federal Court of Australia relevantly alleging that QAL had contravened s 340(1)(b) of the FWA by taking adverse action against employees in the ground handling operations to prevent those employees from exercising a "right" to initiate or participate in "protected industrial action" for the purposes of s 341(2)(c). It was not in dispute that as at 30 November 2020 the ground handling employees did not have any such "ability" to initiate or participate in protected industrial action. The time for that ability to arise would only be in the future, and, even then, it would be conditional on certain events taking place.
In November 2020, ground handling employees of QAL were the subject of an enterprise agreement entitled "Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018" ("the QAL Enterprise Agreement"), which had a nominal expiry date of 31 December 2020. Ground handling employees of QGS were the subject of another enterprise agreement entitled "Qantas Ground Services Pty Limited Ground Handling Agreement 2015" ("the QGS Enterprise Agreement"), which had a nominal expiry date of 1 September 2019. About 63 per cent of all ground handling workers were employed by QGS, and about 50 per cent of these were members of the TWU. Almost all of the ground handling workers employed by QAL were members of the TWU.
As at 30 November 2020, in the case of QAL employees, by reason of s 417 of the FWA, they were prevented from taking industrial action, including protected industrial action, as the QAL Enterprise Agreement remained on foot. No such limitation applied to the employees of QGS precisely because the QGS Enterprise Agreement had passed its nominal expiry date. But, as at 30 November 2020, for another reason those employees also held no ability to initiate or participate in protected industrial action. In order to secure that ability, the following steps, amongst other things, were required: an application needed to be made by a bargaining representative to the Fair Work Commission for an order that a protected action ballot take place[1]; the employees needed the Fair Work Commission to make such an order[2]; and when the protected action ballot occurred the employees needed at least 50 per cent of eligible voters to vote in the
