43.
Secondly, s 340(1)(b) also addresses the future. When introduced as part of the FWA, it was wholly new. Unlike s 340(1)(a), and previous statutory analogues of Div 3 of Pt 3-1[1], it does not employ the word "because" to direct attention to the actuating reason for taking adverse action. Instead, it applies when adverse action is taken against a person "to prevent" the exercise of a workplace right. As the Full Court of the Federal Court in Toyota Motor Corporation Australia Ltd v Marmara[2] correctly observed (with which the Full Court below agreed), the phrase "to prevent" must be read as "in order to prevent". In that case, the Full Court said[3]:
"[T]he expression 'to prevent the exercise' must be read in the sense 'in order to prevent the exercise' or 'with a view to preventing the exercise'. It was not sufficient if action taken by the person referred to in the subsection had the incidental effect of preventing the exercise."
Plainly, like s 340(1)(a)(iii), s 340(1)(b) contemplates a situation where a workplace right has yet to be exercised, where the exercise of the right remains preventable. But unlike s 340(1)(a)(iii), it does not require the employee or employees to have done anything. In order to be engaged, it does not require the present existence of a proposed or threatened exercise of a workplace right. Its concern is thus with the pre-emptive strike.
Thirdly, given the foregoing, it would make little sense to confine s 340(1)(b) to pre-emptive strikes only against the exercise of workplace rights presently held by an employee or employees. Once it is accepted that the language of s 341(1) cannot relevantly control the operation of s 340(1) in the sense contended for by Qantas, there is nothing in the text of s 340(1)(b) that limits its operation to only those workplace rights which are in existence when adverse action has been taken. Such a restriction would require the presence of words of limitation which operate to exclude future workplace rights, yet no such words are to be found. Moreover, given that the concern of s 340(1)(b) is with the pre-emptive strike, it would make little sense for Parliament to have enacted a provision that would deny such a strike against presently held rights, but not against rights which may arise and then possibly be exercised in the future. There
- ↑ See, eg, Industrial Relations Act 1988 (Cth), s 334(3); Workplace Relations Act 1996 (Cth), ss 298K and 298L. See also Commonwealth Conciliation and Arbitration Act 1904 (Cth), s 9(1), as amended by the Commonwealth Conciliation and Arbitration Act (No 2) 1914 (Cth), which adopted the expression "by reason of".
- ↑ (2014) 222 FCR 152.
- ↑ (2014) 222 FCR 152 at 190 [126] per Jessup, Tracey and Perram JJ; see also Qantas Airways Ltd v Transport Workers' Union of Australia (2022) 292 FCR 34 at 62 [86].
