The
In dismissing
Since the assent of the Fair Work Act 2009 (Qld) (FWA), the general protections regime has existed to protect employees from adverse action where they proposed to exercise workplace rights that were immediately exercisable. However, seldom have the courts considered whether the reach of the general protections provisions extend to protect the exercise of future workplace rights.
Following the
Facts
On
- reducing ground handling costs by
$100 million - providing ground handling operations on a 'cost per term' basis
- obviating the need for capital expenditure of
$80 million over five years to perform the ground handling services 'in house'.
Consequently, almost 1,700 employees had their employment terminated. At the time the outsourcing decision was made, the affected employees were covered by two enterprise agreements and were prevented by law from taking industrial action and enterprise bargaining (workplace rights) until the agreements had passed their nominal expiry dates. Although one agreement had done so, the other was due to expire on
Ultimately, this meant that the outsourcing decision pre-emptively prevented the affected employees from the possibility of exercising their workplace rights.
Previous litigation
The TWU initially commenced proceedings in the Federal Court against
In the primary decision, a single judge of the Federal Court found that, although
The key issue for determination for the
Both a 'broad' and 'narrow' approach to the construction of section 340(1)(b) were submitted by
-
in the broad sense, section 340(1)(b) applies only where a workplace right is present at the time of the adverse action; or in the alternative,
- in the narrow sense, that an employee's exercise of a workplace right cannot be prevented by an employer taking advantage of a 'window of opportunity' to take adverse action when features of the FWA prevent the employee from doing so.
- decision makers understand the meaning of 'workplace rights' and 'adverse action'
- decision makers implement clear processes that demonstrate the lawful substantive and operative reasons for their decision, and ensure that their reasoning is sound, justifiable and does not include a prohibited reason.
The matter of compensation and penalties against
Takeaways for employers
The High Court's decision confirms that the meaning of 'workplace rights' includes future workplace rights and not just those rights present at the time.
As such, employers who are considering any action that may have adverse consequences on their workforce should ensure that:
-
they do not take adverse action against employees that may prevent employees from exercising workplace rights
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