Co-authored by: Brooklyn Younger
KEY TAKE OUTS:
- New High Court case rules that Employers must not take adverse action to prevent an employee from exercising a workplace right.
- If an employee is subjected to legal consequences by exercising a workplace right, it cannot be said that the employee possesses the right at all.
- Should a workplace right not be presently available to an employee due to circumstantial contingencies, the employee is still deemed to have the workplace right.
In the recent case of Qantas Airways Limited v. Transport Workers Union of Australia (2023), the High Court dismissed an appeal against the Federal Court’s previous decision that Qantas’ actions were made to prevent employees from exercising workplace rights, to engage in protected industrial action, and to participate in bargaining.
In November 2020, Qantas announced that it was going to commence outsourcing the ground-handling operations team within 10 Australian airports. This saw the ground handling employees of Qantas and Qantas’ subsidiary, QGS, replaced by the staff of third-party contractors. As many of those affected by this announcement were members of the Transport Workers Union (TWU), a claim was brought on behalf of those who lost their jobs due to the outsourcing, arguing that Qantas based its decision to outsource the ground-handling staff as a way of preventing protected industrial action in support of the enterprise agreements that were due to be re-negotiated in 2021.
The Federal Court accepted that Qantas decided to outsource its ground handling employees as a way of reducing business costs. However, it was ruled that the decision was also made to prevent the impacted employees from exercising workplace rights to engage in industrial action.
High Court Appeal
In September of 2023, the High Court dismissed an appeal against the 2020 decision. The High Court ruled the following:
- Any person who takes adverse action against another person to prevent the exercise of a workplace right by the affected person will be found to have contravened the Fair Work Act 2009 general protections provisions.
- If the exercise of a workplace right is prohibited or will subject the person to legal process in the attempt to prevent the exercise of the right, it cannot be said that the person has the workplace right at all.
- An employer will be found to have prevented a workplace right if it stops or attempts to obstruct the exercise of a presently held right or a right that may arise in the future.
- If an adverse action is taken with mere awareness of a potential impact upon another person’s workplace rights – this does not amount to contravening the Fair Work Act 2009. The action must be taken for the reason being that the person has or is able to exercise that right.
- A person can have a workplace right, which may include an entitlement to the benefit of a workplace law or workplace instrument, even though the person’s ability to exercise the workplace right may depend on accrual over time or upon the happening of a future event.
- When the capacity to exercise the workplace right is dependent on circumstantial contingencies, the person is deemed to have the workplace right, even if the right is not presently exercisable.
What can I do?
- Know your workplace rights and entitlements.
- If you feel as though you have been deprived of your entitlements, seek legal advice from Coutts Lawyers and Conveyancers.
- Join your workplace union now for added protection and support in the future.
- Seek advice from Coutts Lawyers and Conveyancers to understand what can constitute an adverse action and what impact this may have upon employees.
- Attempt to prevent an employee from exercising a present workplace right.
- Conduct any adverse actions that prevent an employee from exercising a workplace right in the future.
- Go through this process alone, contact the Employment Team at Coutts Lawyers and Conveyancers now for professional legal advice that you can trust.
How Coutts can help Employers
If you are an employer seeking clarity and guidance on the intricacies of adverse actions against workplace rights and their subsequent impact on employees, our Employment Team at Coutts Lawyers and Conveyancers is here to assist you.
Our team offers expert advice tailored to your unique situation, helping you understand your legal obligations and how to implement best practices in your workplace.
How Coutts can help Employees
If you are an employee and wish to discuss your workplace rights and entitlements with our professional team, please do not hesitate to contact our Employment Team at Coutts Lawyers and Conveyancers. Understanding your rights in the workplace is crucial, and our experts are here to provide you with clear, comprehensive guidance.
Whether it concerns adverse actions, understanding recent legal developments like the Qantas case, or seeking advice on how to navigate complex workplace situations, our team is committed to offering you the support and counsel you need. We ensure that your rights are not only understood but also protected, helping you to address any workplace challenges with confidence and knowledge.
ABOUT KARENA NICHOLLS:
Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.
ABOUT BROOKLYN YOUNGER:
Brooklyn is currently in her third year of University and is studying a Bachelor of Laws at the University of Wollongong.
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This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.