Steward J
40.
the provision refers to a person who "has" a right, and thereafter: in para (a) the reference is to a person who "is entitled" to certain matters, or who "has" a certain role or responsibility; in para (b) the reference is to a person who "is able to initiate, or participate in, a process or proceedings", relevantly here protected industrial action; and in para (c) the reference is to a person who "is able to make" a certain type of complaint or inquiry. In the case of para (c) the significance of the phrase "is able to make" has led Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd [No 6] to observe that the ability to make a complaint must be underpinned by some entitlement or right to do so106, which, inferentially, must be actually and presently held by the employee. Dodds-Streeton J's observation has since been upheld by the Full Court of the Federal Court in Cigarette & Gift Warehouse Pty Ltd v Whelan[1]. It is plainly correct.
Here, Qantas submitted, as at 30 November 2020 it could not be said that the ground handling employees had a presently held right to initiate or participate in protected industrial action, for the reasons set out above. The TWU, and the Minister for Employment and Workplace Relations intervening, sought to contend otherwise by submitting that the employees had contingent rights to initiate or participate in such action and that this was sufficient to satisfy s 341(1)(b) of the FWA. Reference was made to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), which expressed the proposition that the word "benefit" in
- ↑ (2019) 268 FCR 46 at 55–56 [28] per Greenwood, Logan and Derrington JJ. See also PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at 229–230 [11]–[14] per Rangiah and Charlesworth JJ, 257–258 [162]–[164] per Snaden J; Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421 at 488 [285]–[286] per Anastassiou J; Alam v National Australia Bank Ltd (2021) 288 FCR 301 at 324–332 [68]–[97] per White, O'Callaghan and Colvin JJ. Dodds-Streeton J's observation has also been followed at first instance on many occasions: The Environmental Group Ltd v Bowd (2019) 288 IR 396 at 439–440 [128] per Steward J; Morton v Commonwealth Scientific and Industrial Research Organisation [No 2] [2019] FCA 1754 at [34]–[36] per Rangiah J; Maric v Ericsson Australia Pty Ltd (2020) 293 IR 442 at 453–454 [27], 460 [55] per Steward J; Lamont v University of Queensland [No 2] [2020] FCA 720 at [55]–[56], [110] per Rangiah J; Flageul v WeDrive Pty Ltd [2020] FCA 1666 at [273]–[274] per Steward J; Salama v Sydney Trains [2021] FCA 251 at [99]–[102] per Burley J; SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601 at [128]–[143] per Rangiah J; Wong v National Australia Bank Ltd [2021] FCA 671 at [69]–[77] per Snaden J; Crossing v Anglicare NSW South, NSW West & ACT [2021] FCA 1112 at [290]–[294] per Abraham J; Messenger v The Commonwealth [2022] FCA 677 at [142]–[150] per Snaden J; Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [44]–[46] per Feutrill J.
