Impact of the Qantas HCA decision

High Court Reinforces Rights for Employees Intending to Exercise a Workplace Right

Why is employment law so complex? And why do I need a lawyer?

By its very nature employing workers is a legal minefield. There is masses of red tape and legislation to navigate to not only protect workers but to protect the business itself.  The recent decision in Qantas Airways Limited v Transport Workers Union of Australia [2023] in the High Court highlights this and confirms an employer can’t take an adverse action against an employee to prevent them from exercising a future workplace right. If you are an employee, unsure of your obligations, it is best to engage an experienced employment lawyer, who can advise and guide you in this matter, especially if you are considering terminations. The team at Fourtree Lawyers will take the stress out of this process, so you can do what you do best, focus on the success of your business.

Why did the Transport Workers Union take Qantas to court?

In 2020, during the COVID-19 pandemic, Qantas outsourced ground handling operations as a way of reducing operational costs in a financially challenging time resulting in the termination of employees. As a result, the Transport Workers Union of Australia (TWU) commenced proceedings in the Federal Court, where they argued the decision was made because Qantas knew the employees would soon become eligible to engage in enterprise bargaining and take protected industrial action, which is a workplace right. The TWU alleged Qantas made the decision to prevent their employees from exercising their workplace rights in the future. 

Do employers need to worry about the future right of their employees?

Absolutely. It was accepted by Justice Lee in the Federal Court of Australia that the decision to terminate was motivated by financial pressures. He also concluded that Qantas understood their employees would have a future right to engage in enterprise bargaining. As such, it was concluded that it was unlawful under the Fair Work Act 2009, to take adverse action with the intention to prevent the exercise of a workplace right, even if it is not a current right but a future right. 

Are court proceedings for employment matters disruptive to business?

Yes. These court proceedings for Qantas were costly, time consuming, disruptive, and caused significant reputational damage. 

Qantas appealed the decision arguing an individual does not have a workplace right if the law expressly prohibits the exercise of the alleged right. In this instance, the employees were not legally permitted to take protected industrial action at the time of the termination (November 2020), so a breach of the adverse action provisions was not possible at that time of termination. 

This argument was rejected unanimously by the High Court as the Fair Work Act stipulates that adverse action to prevent the exercise of a workplace right is unlawful and that the protection is to extend beyond current workplace rights to include possible future workplace rights. 

Why is Employment Law so complex?

It was noted that adverse action taken with basic awareness of the future right is not unlawful. Accordingly, it is not always unlawful to take adverse action in relation to an employee with a future of potential workplace rights. However, should the evidence indicate that the employer’s desire to prevent the exercise of a future or potential right was a primary reason for taking adverse action, there will be a contravention of the Act. 

The High Court’s decision reaffirms an employee may commence an adverse action claim against the employer if the action was taken to prevent the future exercise of a workplace right. 

Do I need to get legal advice if I am going to terminate an employee?

Yes, it is best practice to get legal advice prior to terminating an employee. 

Employers should be aware if the employee is due to come into any entitlements such as long service leave or take a period of leave prior to the termination as this may be seen as an avenue to avoid paying the employee their entitlements.

Furthermore, in the case of restructuring, employers should be aware if their current enterprise agreement is due to be renegotiated as the circumstances may be like the Qantas case and any adverse action (which does not necessarily need to be termination) may be considered to be an action that prevents an employee from exercising their workplace right. 

Employers should seek legal advice before commencing termination of employees as there can often be considerations or workplace rights which have been or could be exercised which could lead to a general protections application. 

The Qantas decision reinforces the position of the courts that even if there are valid reasons for termination, the exercise of workplace rights will be heavily considered by the court as to whether it was a substantial reason for the adverse action. 

The team at Fourtree Lawyers have significant experience in processes which involve the termination of employees and acting in general protections applications and can provide you with advice to best manage these situations. 

We are here to help

Our solicitors specialise in Employment Law and represent clients throughout the Hunter, Newcastle, Sydney and across the Central Coast. We have the experience to guide you through often complex workplace issues from beginning to end to ensure you get you the best possible outcome.

If you have a workplace issue or dispute, contact one of our employment law specialists on 1300 529 444 or submit a contact form to arrange a case assessment with one of our solicitors today.