Steward J
42.
was not yet "entitled" to the benefit of the EBA[1]. The Full Court agreed with the following submission made by the Port[2]:
"[Section] 298L(1)(h) required that the person who has been refused employment be, at the date of the refusal, entitled to the benefit of an industrial instrument or an order of an industrial body; it was said to be insufficient that the person might in the future be entitled to that benefit. It was common ground that at the date of the refusal, as [the candidate] was not yet an employee of the Corporation, he had no existing legal entitlement to any benefit under the EBA or under any other industrial instrument or order of an industrial body that was of relevance to his prospective employment with the Corporation."
Qantas submitted that this reasoning applied here. The ground handling employees simply had "no existing legal entitlement" to initiate or participate in protected industrial action when Qantas took adverse action.
Qantas' submission is misconceived once s 341(1) is read with s 340(1) of the FWA. That is so for a number of reasons.
First, the Full Court of the Federal Court was correct to conclude that the "temporal frame", or time, for considering a workplace right in connection with the taking of adverse action is governed by s 340(1), being the operative provision, rather than s 341, which is a definitional section. The language of s 340 bears that out: s 340(1)(a)(i) refers to action taken against a person because he or she "has" a workplace right; s 340(1)(a)(ii) refers to action taken against a person who "has, or has not, exercised" a workplace right; and s 340(1)(a)(iii) refers to action taken against a person who "proposes or proposes not to, or has at any time proposed or proposed not to, exercise” a workplace right. Sub-paragraph (i) necessarily deals with the present and would require an employee to hold or have a workplace right as defined by s 341(1). Sub-paragraph (ii) deals with the past; when it applies it will not matter whether the employee has continued to hold the workplace right, which either was or was not exercised in the past, when adverse action is taken. Sub-paragraph (iii) deals with the future as well as the past. Whilst it requires an actual "proposal" which either must exist when adverse action is taken or has existed in the past, it nonetheless contemplates that the exercise of the applicable workplace right has yet to take place. It follows that Qantas' reliance on the words and phrases "has", "is entitled" and "is able" in s 341(1) are of no moment; they cannot control the operation of s 340(1). If they did, they would undo much that s 340(1)(a) seeks to achieve.
