41.
s 341(1)(a) included "benefits that are contingent or accruing"[1]. However, no equivalent language may be found in the explanation for s 341(1)(b); that provision does not use the word "benefit". Moreover, to proclaim that one has a present right to take protected industrial action – which may only be exercisable, or which may only crystallise, upon the happening of future contingent events, which may or may not happen – is to assert no more than the retention of an expectancy, given content by mere hope[2]. With respect, that is most unlikely to be what Parliament intended to include when it relevantly referred in s 341(1)(b) to a person who is able to initiate or participate, here, in protected industrial action. The TWU's and the Minister's submission on this point is rejected.
Qantas sought to support its case by relying upon the decision of the Full Court of the Federal Court in Burnie Port Corporation Pty Ltd v Maritime Union[3]. That case concerned former ss 298K and 298L of the Workplace Relations Act 1996 (Cth). Section 298K provided that an employer must not refuse to employ another person for a "prohibited reason". Pursuant to s 298L, conduct was for a prohibited reason if it was carried out because the employee "is entitled to the benefit of an industrial instrument". Qantas latched onto the phrase "is entitled" as part of its broader submission that there must be a present or existing, rather than prospective, entitlement. Bernie Port Corporation Pty Ltd had two vacancies it needed to fill, and made it clear to candidates in interviews that it would require the successful candidates to enter into an Australian Workplace Agreement ("AWA")[4]. One of the candidates said that he was "not happy"[5] with this; he wished to be governed by an enterprise bargaining agreement ("EBA") that the Port had entered into with the Maritime Union. He was overlooked for both positions in favour of two other candidates, both of whom agreed to enter into an AWA before commencing employment with the Port. The Union contended that he had been refused employment for a prohibited reason. The Full Court rejected the contention because at the time when employment was refused the candidate
- ↑ Australia, House of Representatives, Fair Work Bill 2008, Explanatory Memorandum at 216 [1363].
- ↑ cf Norman v Federal Commissioner of Taxation (1963) 109 CLR 9. The TWU submission had no more substance than an assertion that a person can presently hold a right because they may become a citizen of another country upon satisfying in the future that country's conditions for citizenship.
- ↑ (2000) 104 FCR 440.
- ↑ (2000) 104 FCR 440 at 441–442 [7]–[8] per Wilcox, Kiefel and Merkel JJ.
- ↑ (2000) 104 FCR 440 at 442 [8] per Wilcox, Kiefel and Merkel JJ.
