FEDERAL COURT OF AUSTRALIA

Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s appeal be dismissed.

2.    The respondent’s cross-appeal be dismissed.

3.    The respondent’s notice of contention be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s appeal be dismissed.

2.    The respondent’s notice of contention be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

BROMBERG, RANGIAH AND BROMWICH JJ:

INTRODUCTION

1    The applicant in the proceeding before the primary judge, the Transport Workers’ Union of Australia (TWU), alleged adverse action on the part of the respondent, Qantas Airways Ltd, contrary to ss 340(1)(a), 340(1)(b) and 346(a) of the Fair Work Act 2009 (Cth) (FW Act) in making a decision on 30 November 2020 to outsource ground handling operations work at 10 Australian airports (outsourcing decision). The TWU also sought reinstatement of the employees who had lost their jobs consequent upon proving one or more of the alleged adverse actions under s 545.

2    In these reasons, all statutory provisions referred to are those of the FW Act unless expressly stated to the contrary.

3    The primary judge conducted four hearings resulting in the delivery of the following four judgments:

(a)    after a trial on liability, his Honour found adverse action to be established contrary to s 340(1)(b), but not contrary to s 340(1)(a) or s 346(a): Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; 308 IR 244 (liability judgment or LJ);

(b)    after a hearing on the appropriate form of declaration, his Honour made an order in the form of a liability declaration, giving additional reasons: Transport Workers’ Union of Australia v Qantas Airways Ltd (No 2) [2021] FCA 1012; 308 IR 333 (declaration judgment or DJ);

(c)    his Honour conducted a case management hearing as to the future conduct of the proceeding, deciding that a hearing on the application for reinstatement should precede any hearing on compensation and pecuniary penalties: Transport Workers’ Union of Australia v Qantas Airways Limited (No 3) [2021] FCA 1339 (case management judgment);

(d)    his Honour heard and dismissed the TWU’s application for reinstatement: Transport Workers’ Union of Australia v Qantas Airways Limited (No 4) [2021] FCA 1602 (reinstatement judgment or RJ).

4    There are now appeal proceedings both against the liability declaration and against the dismissal of the reinstatement application, a notice of contention in each of those appeal proceedings, and a cross-appeal on liability.

OVERVIEW

5    The allegations of adverse action by the TWU were based upon a carefully considered and planned process culminating in the making of the outsourcing decision on 30 November 2020 on behalf of Qantas Airways by the Chief Executive Officer of Qantas Domestic and International, Mr Andrew David. At the time of the outsourcing decision, any ground handling operations work at those 10 airports was performed by both the relevant Qantas Airways employees and by employees of a wholly owned Qantas Airways subsidiary, Qantas Ground Services Pty Ltd (QGS), QGS employees.

6    In these reasons:

(a)    the collective term used for both Qantas Airways and QGS is Qantas; and

(b)    the collective term for the Qantas Airways employees and the QGS employees is the affected employees.

7    The effect of the outsourcing decision was that ground handling operations work for Qantas Airways performed by the Qantas Airways employees and the QGS employees was instead to be carried out by staff employed by third-party ground handling companies contracted to provide those services. There was little or no scope for such work to take place at the time of the outsourcing decision due to the grounding of much of all of the Qantas Airways aircraft fleet by reason of the COVID-19 pandemic.

8    The timeframe within which the resumption of Qantas Airways flights might have taken place was uncertain in the lead up to 30 November 2020. However, it was common knowledge that prospects of at least some degree of civil aviation resuming seemed to be improving towards the end of 2020, due to the receding effects of the pandemic and substantial progress being made with the development of COVID-19 vaccines both in Australia and overseas. There was no indication of the particular problems with the vaccination rollout in Australia that emerged in the earlier part of 2021.

9    Prior to any outsourcing decision being made, Qantas Airways was required by its enterprise agreement to provide the Qantas employees with an opportunity to participate in an in-house bid process (IHB) enabling the employees to bid competitively to continue to provide the ground handling services. That requirement had the obvious consequence that the TWU as well as the affected employees would be notified that Qantas Airways was considering outsourcing its ground handling function well prior to any such decision being made.

10    In December 2020:

(a)    the Qantas Airways fleet continued to be grounded due to the absence of flights in Australia and abroad;

(b)    protected industrial action (PIA) (described by s 408 and immune from suit by reason of s 415) was not legally possible in the case of the Qantas Airways employees because s 417 prohibited any organisation of or engagement in industrial action, and therefore any PIA or steps to organise any PIA, before the nominal expiry date of the relevant enterprise agreement on 31 December 2020; and

(c)    PIA was not legally possible in the case of the QGS employees because, while their enterprise agreement had reached its notional expiry date so that s 417 did not apply, the preliminary steps necessary to engage in PIA had not in fact been taken, including in particular a PIA ballot (see Pt 3-3 Div 8).

11    The making of the outsourcing decision on 30 November 2020 meant that the scope for any PIA in 2021, and any preparation for such PIA for the balance of 2020, was effectively eliminated. That is because once that decision was made, there was not going to be any new enterprise agreement to negotiate either for the Qantas Airways employees, or for the QGS employees. Accordingly, neither class of employees, nor the TWU on behalf of any of them, could genuinely take, or organise taking, any PIA, because neither could credibly point to negotiating for a new enterprise agreement as the legitimate reason for such action (see ss 408 and 409).

12    The decision-making process for Qantas Airways overtly involved consideration of three commercial imperatives for making the outsourcing decision. They were summarised by the primary judge (at LJ [138]) as being to “(a) achieve the two-year cost targets by reducing operating costs; (b) increase variability in the cost base; and (c) minimise capital expenditure, grow customer confidence and deliver ongoing business improvement”. Additionally, because of the grounding of the fleet during the pandemic, there was an unprecedented opportunity to obtain those benefits without the usual longstanding countervailing risks or disadvantages. So long as aircraft were not flying, any disruption from the changeover to outsourcing itself or from changeover-related industrial activity, logically could not affect flying operations.

13    The grounding of the fleet meant that in late 2020 and early 2021, the TWU, ground handling operations employees who were members of the TWU, and non-member ground handling operations employees, had probably never been more industrially impotent in resisting outsourcing, including seeking to have the outsourcing decision reversed. By making the outsourcing decision on 30 November 2020, the identified benefits could be advanced, while reducing or even eliminating the costs, both operational and industrial, both at the decision-making stage and at the implementation stage.

14    The live question before the primary judge was whether any substantial and operative part of the reasons for making the outsourcing decision was proscribed. The primary judge considered the outsourcing decision in the overall context in which it was made and did not confine his Honour’s consideration only to the form in which Qantas Airways chose to present and justify that decision.

15    The underlying dispute therefore not only concerns the content of the outsourcing decision as announced and otherwise described in the evidence adduced by Qantas Airways, including the reasons overtly given for making that decision, but also the significance of any other reasons for that decision, including its timing, and whether that timing may reasonably be considered to be a part of that decision.

16    Qantas seeks to avoid any distinction being drawn between the making of the outsourcing decision and any issue as to its timing on the one hand, and its implementation on the other. Qantas also asserts that the timing of the outsourcing decision deprived it of having proscribed status because it contends that there was no extant workplace right which could be prevented from being exercised at that time, so as to take it outside the operation of s 340(1)(b). As noted below, the TWU’s case failed in relation to allegations of adverse action contrary to s 340(1)(a) and contrary to s 346(a), with only the latter sought to be re-agitated on appeal.

17    The outsourcing decision was implemented when the Qantas Airways fleet was still grounded, and still expected to be grounded for some further period of time of a duration that was not certain. It is important not to be distracted by the ex post facto knowledge that flying did not resume at any material time, being in the first quarter of 2021, flowing into and potentially affecting any change in the second quarter of 2021 or immediately thereafter, because that could not be known, at least with any real degree of certainty, in the lead up to 30 November 2020.

18    The implementation of the outsourcing decision took place progressively from late January 2021 and was complete by the end of March 2021. As the outsourcing decision was implemented, any ground handling operations work formerly performed by the affected employees was instead carried out by staff employed by third-party ground handling companies who had been contracted to provide those services to Qantas Airways. All of the ground handling operations roles that had been fulfilled by those affected employees were made redundant, and they were all either retrenched or redeployed.

19    The TWU sued Qantas Airways by an originating application and statement of claim, each amended once, alleging adverse action by making the outsourcing decision, and principally seeking reinstatement of the affected employees. Following a separate liability hearing, the primary judge found:

(a)    that the outsourcing decision contravened s 340(1)(b) because it was made for reasons that included a proscribed reason defined by his Honour as the Relevant Prohibited Reason, namely, preventing the exercise by the affected employees of their workplace right to organise and engage in PIA and participate in bargaining in 2021, because Qantas Airways had not discharged the onus imposed by s 361 of displacing that as a substantial and operative reason;

(b)    that adverse action in making the outsourcing decision by reason of certain of the employees being union members contrary to s 346(a) had not been proven; and

(c)    that the outsourcing decision fell short of adverse action as a substantial and operative reason with respect to:

(i)    the affected employees who were entitled to the benefits of their respective enterprise agreements; and

(ii)    other pleaded grounds including union membership and the ability at the time of the outsourcing decision to participate in a process under the FW Act to initiate or participate in bargaining for the making of an enterprise agreement, contrary to s 340(1)(a),

a conclusion that is not challenged and does not need to be considered further.

20    The primary judge expressly stated that the only proscribed purpose in making the outsourcing decision that was consistent with the evidence and had not been disproved was that pleaded in substantially the same form as found to be established in relation to s 340(1)(b), as noted at [19(a)] above.

21    The primary judge conducted a further hearing and delivered further reasons ex tempore on 25 August 2021, making the following order in the form of a declaration, reflecting the findings made by his Honour in the liability judgment:

The respondent (Qantas [Airways]) by its Chief Executive Officer, Qantas Domestic and International, in making the decision announced on 30 November 2020 to outsource its ground handling and fleet presentation operations at ten Australian airports (relevant airports) to third party providers, engaged in conduct which contravened s 340(1)(b) of the Fair Work Act 2009 (Cth) (Act), by taking adverse action against:

(a)    employees of Qantas [Airways] who performed ground handling and fleet presentation work at the relevant airports and whose employment was covered by the Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018 (Qantas [Airways] employees) for the purposes of Item 1(c) of s 342(1) of the Act by prejudicially altering Qantas employees’ positions; and

(b)    employees of Qantas Ground Services Pty Limited (QGS) who performed ground handling and fleet presentation work at the relevant airports and whose employment was covered by the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS employees) for the purposes of Item 3(c) of s 342(1) of the Act by altering QGS’ position to its prejudice in relation to its contract for services with Qantas,

for reasons, which included to prevent the exercise by the Qantas [Airways] employees and QGS employees in 2021 of their workplace right, following the nominal expiry of the relevant enterprise agreements, to: (i) organise and engage in protected industrial action or a protected action ballot for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement; and (ii) participate in enterprise bargaining, under the Act.

22    QGS was joined as a second respondent to the proceeding before the primary judge prior to the hearing of the TWU’s reinstatement application under s 545, based upon the adverse action declaration. Reinstatement relief was subsequently refused by his Honour following an ex tempore judgment, published as the reinstatement judgment.

23    The declaration arising from the liability judgment and the dismissal of the reinstatement application have given rise to the following:

(a)    Qantas Airways and QGS appeal (and if need be, seek leave to appeal), from the declaration of adverse action, relying upon five grounds of appeal (Qantas appeal).

(b)    The TWU relies upon a notice of contention in the Qantas appeal to assert that the declaration of adverse action could be supported upon two grounds other than those relied upon by the primary judge (TWU notice of contention).

(c)    The TWU cross-appeals in the Qantas appeal against the primary judge’s finding that the s 346(a) adverse action had not been proven, relying upon three grounds (TWU cross-appeal).

(d)    The TWU appeals by leave from the dismissal of the reinstatement application, relying upon six grounds (TWU appeal).

(e)    Qantas Airways and QGS rely upon a notice of contention in the TWU appeal to assert that the dismissal of the reinstatement application could be supported on another ground (Qantas notice of contention).

24    The outcome of each of these proceedings is as follows. None of the grounds in either the Qantas appeal or in the TWU appeal have succeeded. It follows that both appeals must be dismissed. The TWU cross-appeal and the Qantas notice of contention do not arise. Finally, the TWU has failed to make good on its case in the TWU notice of contention.

25    Qantas also sought leave to appeal in the Qantas appeal. Leave would be necessary if the declarations made by the primary judge are properly characterised as interlocutory orders. For present purposes it is unnecessary for this Court to determine the point. If leave was required, we grant it.

THE QANTAS APPEAL

The liability judgment and resulting order in the form of a declaration

26    The liability judgment is lengthy and detailed. This summary is confined to capturing the essence of what the primary judge decided and how in order to contextualise the competing arguments advanced in this Court.

27    The primary judge, after describing the case in general, addressed in detail a number of important preliminary issues, including the difficulties occasioned both for the competing cases and for the assessment of the evidence by the reliance of the parties on affidavit evidence in chief rather than oral evidence. While his Honour expressed a general preference for contemporaneous documentary evidence, that was qualified by the way in which that record, and the affidavit evidence by which it was presented, appeared to have been prepared. His Honour described each of five Qantas witnesses in terms of their role and their general credit.

28    It is only necessary to refer to that witness assessment for Mr Paul Jones, Mr Colin Hughes and Mr Andrew David and not that assessment for Mr Paul Nicholas or Mr Andrew Finch. However, it is convenient to state here their respective roles:

(a)    Mr Jones was the Chief Operating Officer of Qantas Airlines, and before taking on that position in mid-2020 was Executive Manager of Freight & Australian Airports.

(b)    Mr Hughes was the Executive Manager, Qantas Airports from September 2019 to February 2021.

(c)    Mr Nicholas was the Head of Strategic Business Planning, and his role included the design of initiatives and methods to improve cost efficiencies in the Australian Airports business.

(d)    Mr Finch is a solicitor and was employed as the General Counsel & Group Executive, Office of the Chief Executive Officer and Company Secretary.

(e)    Mr David was the Chief Executive Officer of Qantas Domestic and International.

29    The primary judge found that Mr Jones was an unimpressive witness. This conclusion infused his Honour’s assessment of that evidence in its context. His Honour gave a specific, detailed and important, but non-exhaustive, example of why that conclusion had been reached by reference to an important contemporaneous document for a meeting of the group management committee (GMC) that had been hand-annotated by Mr Jones, addressed in more detail below. That document was not referred to in Mr Jones’ affidavit, but made the subject of cross-examination in which he was observed by his Honour to be uncomfortable, and his manner unpersuasive. The conclusion his Honour reached was that Mr Jones was feigning a lack of recollection as to what was in his mind when he made the annotations which went directly to the issue of the reasons for the outsourcing decision, casting doubt on his evidence on that topic more generally. Mr Jones was found to be willing to fashion his evidence to suit what he perceived to be the forensic advantage to Qantas Airways, and therefore his Honour did not consider it safe to place any significant reliance upon that evidence. These findings reflected the advantages enjoyed in the assessment of evidence as it unfolded that it is almost impossible for an appeal court to gainsay. Qantas made no serious attempt to do so.

30    The primary judge found Mr Hughes to be a somewhat more impressive witness than Mr Jones, but found his desire not to depart from his affidavit evidence in some respects less than compelling. His Honour gave two examples, and indicated they could be supplemented, which resulted in his Honour having difficulty in accepting that Mr Hughes was always doing his best to give candid answers.

31    In relation to Mr David, the primary judge rejected a TWU submission that he attempted to mislead the Court deliberately in all material respects, with aspects being found to have a “crystal-clear ring of clarity” which was absent from other witnesses in relation to a process called an in-house bid and the likelihood that outsourcing would occur. The IHB was put forward as an alternative to outsourcing, but on the evidence as considered by his Honour was plainly never considered by Qantas Airways to have been a serious financial alternative to outsourcing. His Honour found that while Mr David was more realistic than others in this aspect of his evidence, that did not mean that in all respects his evidence was satisfactory. In particular, referring to the benefit of seeing the cross-examination on the topic of the level of union membership in Qantas Airways and QGS and the influence of the TWU, his Honour had real difficulty in accepting, as effectively asserted in that evidence, that Mr David did not hold a view or belief as to whether that union membership was closer to 1% or 99%, or needed assistance in understanding what the word “influential” meant. His Honour regarded this evidence as being indicative of a perceived desire not to make concessions. His Honour returned to the credibility of Mr David’s evidence when making the ultimate findings, addressed below.

32    The primary judge then made detailed findings as to what had occurred from early 2020 until the making of the outsourcing decision on 30 November 2020, starting with the emergence of an outsourcing decision as an option in early 2020 and culminating in that decision being made and its implementation being announced on 30 November 2020. Key aspects of that chronological set of findings can be summarised as follows.

33    As at January 2020, Qantas Airways intended that there be no foreseeable change to its ground handling operations at the 10 airports where that had been historically performed by employees like the affected employees.

34    In early February 2020, progressive restrictions on travel were being imposed as a result of the COVID-19 pandemic, first for international travel and then for domestic travel.

35    In late April 2020, Mr Hughes had discussions with Mr Jones, who informed him that Qantas Airways management had begun to grapple with the potential impact of the pandemic and that significant changes were needed to remain viable, with Mr Hughes being aware from this time that Qantas Airways was starting to think about transformation opportunities in the context of the pandemic.

36    On 1 May 2020, a GMC meeting was held, with the slides for that meeting under the heading “Operational Transformation” including on a list of “Prioritisation Criteria” the items “vanishing window of opportunity”, “value” and “feasibility”. The evidence of Mr Hughes was that “vanishing window of opportunity” was a reference to the pandemic causing almost complete reduction in flights and consequentially lower operational risk of outsourcing. Prior to any financial targets being set on 20 May 2020, the prevailing operating environment presented the first opportunity to outsource ground handling.

37    It was only on 20 May 2020, after the outsourcing decision had been raised as an option, that the financial targets were set. On that morning, Mr Hughes emailed himself notes from a conversation with Mr Jones. A few minutes later Mr Hughes forwarded those notes onto Mr Nicholas (the head of strategic planning) with that document including a handwritten annotation from Mr Jones (Voice-over annotation):

Voice-over labour Gov Lockin benefits + open EBAs 2020 DEC

38    The primary judge rejected the evidence of Mr Jones that he did not recollect what was in his mind when he made the above Voice-over annotation and did not accept that he could not recall what was later discussed relevant to the annotation at the GMC meeting. His Honour found it was much more probable than not, given Mr Jones thought it worthwhile to make the annotation proposing a voice-over, that a presentation to that effect was made by him to the GMC. His Honour found that when Mr Jones wrote “+ open EBAs 2020 DEC” that was meant to relate to a dot point on the document which read:

Evaluation of how options are superior to solving the current state. Why they are different for Customer vs Ground Ops.

39    His Honour accepted a TWU submission that this was a record of Mr Jones’ view that the option of outsourcing was superior given that the two enterprise agreements would be open from the end of December 2020. Among other findings, his Honour was reasonably satisfied that when Mr Jones wrote “+ open EBAs 2020 DEC”, he believed one reason for pursuing outsourcing in 2020 was to avoid Qantas Airways being in a position where it had to bargain with the TWU and its members from December 2020 and face the prospect of industrial action, just when he considered that flights might be getting back to some degree of normality in 2021.

40    Apart from the annotation and where it was written and his concerns about the credibility of Mr Jones, the primary judge was fortified in those conclusions for a least three reasons, being that:

(a)    Mr Hughes agreed that the annotation was a reference to the fact that the Qantas Airways enterprise agreement would pass its nominal expiry date at the end of December 2020 and he had discussed this with Mr Jones;

(b)    another “AA restart summary” presented to the GMC on 15 June 2020 demonstrated that Mr Jones was well aware about the opening of that enterprise agreement and that there was a risk this would concentrate power back into the TWU early in 2021 when Qantas Airways was growing domestic demand back and Virgin Airlines was potentially up on its feet and that the longer the decision was deferred the greater the increase in operational continuity risk, with Qantas Airways being unlikely to make any significant change in 2021 with an open enterprise agreement; and

(c)    it seemed that Mr Jones considered it expedient to convey these views orally, which was more likely to be to prevent them being recorded, but even if that was not so, it was likely to reflect his candid views.

41    A slide presentation at a GMC meeting on 29 May 2020 included “Pathway to cost base requires TWU agreement and appears difficult”, which his Honour found reflected the views each of Messrs David, Jones, Hughes and Nicholas, being a meeting that involved an assessment of options “below the wing”, meaning ground services.

42    A slide presentation at a GMC meeting on 2 June 2020 included information from which the primary judge found that Messrs David, Jones and Hughes believed outsourcing was preferable to “rightsizing” the workforce, with the only real issue being whether it was too risky. The precise meaning of “rightsizing” does not appear to matter because it was an alternative to outsourcing that was not pursued. The primary judge at LJ [248] quoted from the evidence to indicate that it meant “surplus management savings in term of stand downs, leave burn and other flexibilities”, indicating that this was reference to achieving savings on employee costs in other ways.

43    On 11 June 2020, Qantas Airways received detailed advice from industrial relations consultants about the industrial risks of outsourcing, with that document being discovered, admitted into evidence and partially reproduced in the liability judgment. The advice detailed the likely reaction of the TWU to outsourcing, including utilising every legal avenue to delay it and having nothing to lose in taking Qantas Airways on, opining that it would succeed if legal and commercial reasons supported it, but that the environment in which it took place needed to be carefully considered, both in term of the impact on the timing of achieving it and current government and public attitudes. The advice noted that under the Qantas Airways enterprise agreement consultation was required on major decisions and that the agreement required the application of a protocol for pre-decision consultation and an IHB where Qantas Airways is considering outsourcing. The advice stated that the TWU will “undoubtedly use all these provisions to frustrate and attempt to delay the process”.

44    In a telephone conversation between one of the consultants and Mr Jones, he was told that the outsourcing proposal was high risk and the consultant was a proponent of reducing the risk, including by only partial downsizing.

45    In considering the evidence of the consultants’ advice, the primary judge’s strong impression was that an outsourcing option continued to be preferred in June 2020 by Mr David, Mr Jones and Mr Hughes, subject to detailed consideration of the sort of industrial risks identified by those consultants, and the legal risks for which expert advice was being sought from highly experienced industrial solicitors. His Honour noted that irrespective of any conditional preference to outsource of Mr David, Mr Jones and Mr Hughes, no decision could be made before the “IHB timeline risk” was managed and Qantas Airways had ensured, consistently with the warning given by the industrial consultants, that the TWU did not use the provisions requiring the IHB to frustrate and attempt to delay the outsourcing process.

46    After further consideration of the advice from the consultants, on 13 June 2020 Mr Hughes emailed to Mr David and Mr Jones a documents with a draft of Mr David’s talking points for the 15 June 2020 GMC meeting. That document was described by Mr David in an email the next day as “Excellent job. Read it thoroughly. Nothing I would change or add”, was in evidence and was substantially reproduced in the liability judgment. The document outlined the reason to consider a “full exit”, being outsourcing, and two alternative options. The document as reproduced included a description of financial benefits and industrial risks of outsourcing. The discussion of one of the other options referred to the risk of the two enterprise agreements being open simultaneously, which would concentrate power back in the TWU early in 2021, again referred to growing domestic demand back and Virgin Airlines being potentially on its feet. The primary judge said that the terms of this document fortified his Honour’s view that Messrs David, Jones and Hughes, who were at the GMC meeting, considered that a one-off and vanishing opportunity was being presented to adopt outsourcing and that operational risk would increase in 2021 in circumstances of open enterprise agreements.

47    A further draft of the document was sent by Mr Jones to Mr David on 14 June 2020, which was supplemented with more information under the heading “The timing”, reproduced by his Honour. The primary judge considered that this document was consistent with the views that Mr Jones held at that time that the operational consequences of the pandemic presented a limited opportunity to outsource, that the described necessity driven by COVID-19 provided a justification that could be deployed inside and outside Qantas Airways which would weaken over time and significant change in 2021 would not be likely for reasons that included the Qantas Airways enterprise agreement passing its nominal expiry date. His Honour regarded Mr Jones’ evidence in cross-examination on this document, reproducing transcript extracts, as a further example of his evidence being troubling. His Honour had no doubt that the most significant risk to operational disruption was because PIA may be able to be taken by employees and had no doubt that was one of the reasons in the mind of Mr Jones when he had formed and communicated the view that if outsourcing was to be done, it was best done quickly.

48    On 19 June 2020, a Qantas Airways board meeting was held at which discussion took place about the development of a three-year plan to guide the way through the pandemic to recovery. A slide show presentation, partially reproduced by his Honour, included an item headed “Industrial Risk Assessment”, with one item with a high-risk rating referring to “[b]elow the wing”, which stated:

TWU response to strategic review. Expected legal challenge and public brand campaign. Delays to in-house bid [IHB] process. QGS EA open. QAL [Qantas Airways] EA to open 1 January 21. PIA possible.

49    The Board meeting minutes, in recording a resolution that a Qantas Group three-year financial plan was approved, relevantly included a reference to the GMC and Mr Jones leading a detailed discussion on the manpower aspect of the proposed recovery plan. This was described as including details of the reduction of employee numbers, potential restructuring opportunities for below the wing ground operations, and identifying significant risks including potential industrial action, legal challenges, political consequences, and brand/reputational damage, and the management of those risks by a sub-group of GMC, reporting back to the Board.

50    Mr Jones’ 15 June 2020 speaking notes for that Board meeting, partially reproduced by his Honour, relevantly included a reference to a significant opportunity beyond rightsizing to drive fundamental transformation below the wing though outsourcing the entire function, describing that as a non-core part of the business, with there being many specialist companies performing this work, and 58 out of 68 ports having that arrangement. The speaking notes said that while a lot of clear “pros” were outlined, there were a number of “critical risks that need to [be] weighed up carefully before making a decision”, in context a reference to an outsourcing decision. The risks noted in the notes as reproduced by his Honour included in particular references to the TWU and to the current planning for a decision prior to 20 August, and what needed to be done before that, including the IHB process. The notes canvassed the alternative of a phased approach involving only Sydney international operations, describing that as a much longer term strategy and process given the lack of growth potential, and the “legacy EBA” with the TWU opening in early 2021 “significantly increasing the operational risks with any transitions”.

51    The primary judge noted two points. First, Qantas Airways rightly observed that it was important not to decontextualise what was occurring in relation to any option as to ground handling operation, noting that its affirmative case was that the outsourcing decision was made for the three imperative reasons, but the fulfilment of them was only a part of the much bigger picture of the recovery plan. His Honour did not regard it as “intuitively odd” that the Board and GMC would devolve responsibility not just for implementing such changes, but also deciding upon them, rejecting a contrary TWU submission. This observation went to the issue as to who the decision-maker was, with his Honour ultimately finding it to be Mr David.

52    Secondly, the primary judge noted, as his Honour found to be reflected in a portion of Mr Jones’s speaking notes, that he did not think that there was any doubt in the mind of Mr Jones, Mr David or Mr Hughes that there were clear “pros” of outsourcing the entirety of Qantas Airways ground handling function and that was to be preferred to rightsizing, that the attempt by Qantas Airways by reference to the evidence of Mr Jones and Mr Hughes to paint them as agnostic between those two options was entirely unpersuasive, and that it was no overstatement to remark that they were facing a business calamity. Provided it was feasible, they wished to implement the overall financial outcome best perceived to assist the recovery of a business under extreme pressure. This involved seeking and obtaining expert advice so that industrial and legal risks could eventually be weighed against the estimated rewards. That was consistent with the decision best facilitating the three commercial imperatives, provided it was open to do so. Messrs Jones, David and Hughes wanted to outsource ground operations because they believed it was best for the bottom line. Properly understood in the context of the rest of his Honour’s reasons, this was an acknowledgment of the benefit reasons for the outsourcing decision, but with the qualifications of feasibility, including countervailing risks. It would be a serious distortion of his Honour’s reasons to contend that these findings necessarily, or even realistically, precluded there being any other reason for the outsourcing decision. Yet, as considered below, that is a cornerstone of the Qantas argument for overturning the declaration.

53    In the period from 29 June to 11 August 2020, a detailed timeline was planned, and associated actions taken, contemplating a decision about outsourcing being made by the end of 2020, which included the key outstanding risks to be assessed. By those steps, the primary judge was satisfied that plans were well advanced for the announcement of the outsourcing proposal, with it appearing that on that date a two-hour GMC meeting was scheduled for 21 August 2020, with the invitation extended to the industrial consultants and the Qantas Airways executive manager for industrial relations. Those steps over that period included:

(a)    a process which resulted in obtaining information from potential third-party suppliers of ground handling services, which included the potential industrial benefits when compared with the existing arrangements;

(b)    a 5 August 2020 meeting of the GMC which included a presentation about a risk review which his Honour was confident accurately reflected the views of Messrs David, Jones and Hughes at that time and included the topic of industrial risks; and

(c)    the 6 August 2020 preparation of a draft “Australian Airports Reforecast”, which referred to outsourced supplier costs and a delay in the below the wing option until December 2020, and legal and industrial risks, the content of which was heavily redacted for reflecting privilege claims, from which his Honour drew no adverse inference.

54    In the period from late August to mid-November 2020, the following occurred:

(a)    on 19 August 2020, a Qantas Airways board meeting was held at which an announcement on 25 August of a strategic review of ground handling was noted;

(b)    on 20 August 2020, Qantas Airways released its full year results for the 2019-2020 financial year, and a project restart steering committee meeting was held, with his Honour finding that by then it was time to put the outsourcing proposal in place; and

(c)    on 24 or 25 August, Mr David executed a request for approval of a review of Australian Airports ramp, baggage and fleet presentations operations for Qantas Airways.

55    The TWU submitted to the primary judge that the request for approval process was designed to make it appear that Mr David was singularly responsible for the outsourcing decision and to disguise the role of the GMC. His Honour did not accept this, finding that it was clear that this process was a standard exercise regularly deployed to access funds and record decisions. His Honour found this was part of a formal and long process rather than a concoction, and the final step in putting in place a decision that was by that time inevitable given the evaluation of likely risks and rewards by Mr David and those reporting to him of proceeding with outsourcing. However, his Honour did not accept the suggestion that the practical decision to review the options was made at that time and not earlier. His Honour found that while the request for approval process might have been a standard procedure, this one was of importance and was prepared with extensive legal and industrial relations advice. His Honour found that what was happening was broadly consistent with Mr David’s oral evidence, and that he was happy to proceed and had reached this final view sometime after 5 August and before 24 August, with his Honour noting that he had already found that Mr David’s settled position for some time was that he was highly likely to proceed with the outsourcing proposal. His Honour concluded that the request for approval process was best seen as procedural step necessary to proceed with the strategic review (noted at the 19 August 2020 Board meeting).

56    On 25 August 2020, Qantas Airways notified affected employees of the decision to undertake the strategic review of ground handling, including details of the IHB process and an external request for proposal process with third party ground handlers and made a public announcement. A couple of days later there was a briefing session with the TWU. His Honour found that by the time of the instigation of the strategic review, after having received detailed expert advice about industrial and legal risks, and having weighed those risks, each of Messrs David, Jones and Hughes were of the view that a final outsourcing decision would be made, but this was subject to Qantas Airways having to go through the request for proposal and IHB processes. The rewards and benefits were by then well known to them, being annual cost savings of about $100 million when things returned to normal, ground operations would be provided only when an aircraft needed to be turned around and capital expenditure on ground equipment of $80 million over five years would not need to be expended. His Honour was satisfied that in their minds, the benefits were so significant as to outweigh the likely legal and industrial risks as explained to them, even though the experienced external industrial relations consultant was, at least initially, very concerned about the overall risks. His Honour also noted that although any savings from the counterfactual of not making that decision could not be identified until the IHB process had ended, given the significance of the savings he did not think that any of Messrs David, Jones or Hughes considered this was likely to be close, with eventual outsourcing being a “racing certainty”, or close to it. His Honour made that finding despite the evidence of Mr Jones and Mr Hughes being prepared to maintain an openness to the prospect and likelihood of comparable benefits emerging from the IHB process. His Honour regarded this as a good example of the artificial nature of their evidence, and of Mr David being “somewhat” more frank and realistic.

57    The primary judge observed that a vast bulk of evidence, expert and lay, was directed to the IHB process, but his Honour considered despite that it could be dealt with briefly, with most not needing to be referred to. Even the limited reference that his Honour made does not require reproduction as it does not assist on the issues presently before the Court. His Honour recorded but did not decide upon the TWU submission that this process was no more than a box-ticking exercise that Qantas had to go through before announcing its preferred outsourcing decision.

58    By early November 2020, Qantas Airways had effectively negotiated terms with external ground services providers and was in a position to engage them to do that work. By 18 November 2020, a request for approval for the awarding of contracts for ground operations across the 10 ports had been prepared to be sent by Mr David to the Qantas Group Chief Executive Officer, Mr Alan Joyce. A power of attorney from Mr Joyce to Mr David was said to be required because the net present value of the outsourcing contracts exceeded Mr David’s delegated authority. His Honour did not accept the impression sought to be conveyed by Qantas Airways that these two documents, the request for approval and the power of attorney, which he called the “David Approval Documents”, had emerged as a run of the mill exercise. Rather, his Honour found that the initial evidence of the Qantas Group General Counsel, Mr Andrew Finch, was inaccurate in so far as it was to the effect that the executive manager of industrial relations had unexpectedly approached him on 18 November 2020, when in fact contact had taken place before then. The circumstances in which the documents were prepared and finalised, the deficiencies in the IHB process, and the submissions by the TWU as to both, were considered in some detail by his Honour, but that detail is not presently relevant. What matters is that his Honour was not willing to find that they were an artifice or conducted otherwise than in good faith. His Honour found that the IHB was done because it had to be done, but there was never a realistic prospect of it being successful, his Honour already having noted that the IHB response by the TWU only offered savings of $100 million over five years, with more work to be done and the possibility of additional savings.

59    The primary judge described Qantas Airways’ affidavit evidence in chief on this topic as being carefully drafted to stress that the various bids failed to achieve any of the three commercial imperatives, and that this was said to be the basis upon which Mr Hughes recommended to Mr David that he decide to outsource the ground operations, and the reason why Mr Jones agreed with and endorsed that recommendation. His Honour described that as a tortured narrative, overcomplicating what actually happened, and that ever since the outsourcing proposal was first considered, each of those three men thought it was in the commercial interests of Qantas Airways and should be pursued provided the risks were not too great.

60    The primary judge considered competing submissions as to what should be made of the process and evidence in relation to the 18 November request for approval, the power of attorney, and the subsequent 26 November request for approval. His Honour accepted that they did make it appear that Mr David was the sole decision-maker and that Qantas Airways was intent on painting a picture that the outsourcing decision was a commercial decision made by one man by a commonplace and ordinary process, was conscious that the records were created to reflect this narrative, and other business records that might have been expected were not created, when specialist legal and industrial advice was being obtained. His Honour also accepted that the Qantas witnesses were careful not to depart from evidence they considered supported that case. However, his Honour did not consider that he was entitled to infer that the GMC endorsed or approved that decision, describing that as too speculative. His Honour did not accept the TWU’s contention that the GMC made the outsourcing decision, describing the argument as making too much of the evidence relied upon. Rather, the role of the GMC was to set broad strategic goals and parameters for the entire Qantas Group, including the recovery plan, be a senior forum for the exchange of information and providing feedback on risks and opportunities, being a role that was fulfilled. The primary responsibility for specific significant proposals being identified, considered and implemented was for senior managers after consultation with the GMC, which made sense having regard to the size and structure of the business and the apparent ambit of the responsibilities of the senior managers.

61    The 26 November 2020 request for approval and a presentation were sent to Mr David and the next day he signed it. The primary judge was satisfied that although since at least August the outsourcing decision was very highly likely to be made, it was Mr David who was ultimately responsible for making it. On 29 November 2020, the Qantas Board was provided with a memorandum about the outsourcing decision, and on 30 November Qantas Airways announced it had rejected the in-house bid and had determined to outsource its ground services operations to external third party providers. His Honour reproduced a substantial part of the communication from Mr David to employees.

62    In late January 2021, Qantas Airways entered into ground handling agreements with third-party providers, and on or before 31 March 2021 all relevant affected Qantas employees ceased employment in that role.

63    Having made the above findings, the primary judge considered the following competing submissions and made the following findings on the outsourcing decision. Qantas Airways submitted that the TWU case was an artificial construct, seeking to “throw a blanket” over all the events and then conduct a roving search for what might have been exercising the minds of the various Qantas Airways managers, so as to assert that any and all of those things should be regarded as substantial and operative reasons for the outsourcing decision. Qantas Airways contended that while Mr David kept a close eye on implementation risks, his immediate and operative reasons were the three commercial imperatives, being the only things referred to in the comparative assessments by Mr Nicholas and Mr Hughes, the recommendation of Mr Jones and the only subject matter of the final request for approval and accompanying support pack. His Honour observed that, given the attention given to the critical documents, including by industrial relations lawyers with eyes attuned to protecting the imminent decision from attack, it would have been remarkable for there to have been reference to anything other than the three commercial imperatives.

64    The primary judge was satisfied that Mr David’s evidence as to the reasons for embarking upon the outsourcing proposal being the three imperatives was substantially correct, but was not satisfied that those objectives, expressed at a level of generality, meant that Mr David was not subjectively conscious of other considerations that were not inconsistent with those objectives. His Honour had reservations about Mr David’s denial that his reason for the decision to outsource was to avoid Qantas Airways being in a position where it needed to bargain with and negotiate with the TWU in the future. A part of the reason for this uncertainty was that his Honour rejected the similar but unconvincing evidence of Mr Jones that no part of his reasons for recommending the outsourcing decision be made was to prevent employees from disrupting services in 2021 by taking PIA when it was hoped that services might be getting back to normal.

65    The primary judge considered the evidence about the different view that Mr Jones and Mr Hughes had about the likely amenity of the Australian Services Union (ASU) for “above the wing” customer service staff, compared to the TWU. His Honour found that it was plain that Mr Jones and Mr Hughes believed that one could do business with the ASU, but the TWU was in a different category. However, his Honour did not accept a TWU submission that this pointed to a factor motivating the involvement in promoting the outsourcing decision.

66    The primary judge found no suggestion in the evidence that Mr David, Mr Jones or Mr Hughes had any different views about the risks and rewards of outsourcing, and the apparent consensus between them weighed in favour of a conclusion that Mr David had similar views to Mr Jones and Mr Hughes as to when and why outsourcing should occur. His Honour formed that view notwithstanding that he accepted that the three imperatives were objectively cogent commercial reasons for the outsourcing decision, this was not incompatible with another, complementary reason. The key concern of making the outsourcing decision on 30 November 2020 was because of the vanishing window of opportunity, with the operational disruptions occasioned by the pandemic meaning that the risk/reward analysis previously preventing outsourcing being considered a viable option became viable for a limited period.

67    The primary judge found that the existence of the open enterprise agreements was a further factor, at least in the mind of Mr Jones, who perceived a need for the outsourcing decision to be made prior to Qantas Airways being presented with the prospect that the industrial backlash could have included PIA. The primary judge was satisfied that this factor was part of Mr Jones’ reasoning processes in making his assessment of the other two options and his endorsement of the recommendation to Mr David. However, his Honour was less certain of the subjective decision-making processes of Mr David as the decision-maker. It is clear, therefore, that in the absence of the presumption in s 361(1), the TWU’s case under s 340(1)(b) would have failed because his Honour found that the positive evidence in relation to the state of mind of Mr David fell short of what was required for that purpose.

68    The primary judge considered the nature of the TWU adverse action claim, and the relevant statute and case law, including in particular the terms of and case law in relation to ss 360 and 361(1) and the conclusion that the operation of the rebuttable presumption of a proscribed reason for the outsourcing decision. There is no suggestion of error in that consideration. The case law in that regard is set out below at [143], as recently summarised in Alam v National Australia Bank Ltd [2021] FCAFC 178; 310 IR 71; 393 ALR 629 at [12]-[14] per White, O’Callaghan and Colvin JJ. His Honour then turned to the determination of whether Qantas Airways had established that, on the balance of probabilities, the action constituted by the outsourcing decision was not taken for reasons which included a prohibited reason. His Honour correctly observed that this question was to be answered by reference to his findings on all of the relevant evidence, noting that s 361(1) did not impose upon Qantas Airways any onus to call any and every piece of evidence that might arguably influence the answer, citing Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273 at [27] per Jessup J.

69    The primary judge then observed that s 340 and other provisions were directed to the state of mind of “a person”, calling for an inquiry into the mental processes of the person responsible for the action – here the outsourcing decision – citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 at [140]. His Honour observed that this inquiry can be straightforward, but in other cases can be complex even where there is a single decision-maker. In this case, this raised the issue of corporate decision-making, and the related issues of involvement in, contribution to, influence upon, or a material effect upon, such a decision. His Honour’s consideration of authority on this topic is addressed in considering ground 4 in the Qantas appeal, and the TWU notice of contention in relation to that appeal. It suffices at this point to note that his Honour rejected a TWU submission to the effect that in order to discharge the onus in s 361(1), Qantas Airways was required to lead evidence of the reasons and purpose of every person who was involved in and contributed to the ultimate decision by Mr David. His Honour accepted Qantas Airways’ submission that the analysis of ss 340 and 346 was a causal inquiry of the reasons of the decision-maker at the time any adverse action was taken.

70    The primary judge found that the TWU’s s 346(a) adverse action case was not made out because his Honour was not satisfied that union membership per se was more than a consideration that was factored into the making of the outsourcing decision, and that this did not rise to the level of being a reason for making that decision. His Honour was satisfied that the outsourcing decision made by Mr David on 30 November 2020 became inevitable because an assessment was made that the manifest commercial benefits outweighed the risks. The financial crisis and the operational disruption caused by the pandemic meant that the industrial and reputational risks were far less significant than would otherwise have been the case. However, while his Honour accepted that pure financial interests were at the forefront, he did not accept that this was not in fact decided until the eleventh hour, as Qantas Airways urged. His Honour concluded that he was satisfied on the balance of probabilities that the fact that affected employees were members of the TWU was not of itself a substantial and operative reason for deciding to make the outsourcing decision.

71    In relation to the TWU’s s 340 adverse action case, the primary judge was satisfied that the primary case based on preventing the exercise of workplace rights was made out, but that the case concerning the entitlement to the benefits of enterprise agreements was not made out. As that second decision is not challenged, it is only necessary to address the primary case, which was the only proscribed reason that his Honour found that Qantas Airways had not disproved in discharge of the onus in s 361(1).

72    In order to understand the conclusion the primary judge reached, it is illuminating first to address briefly how his Honour characterised the TWU case as argued in closing submissions, the Qantas Airways arguments to the contrary, and his Honour’s consideration of those arguments. The thrust of the TWU case was that one of the reasons for the outsourcing decision was that 2020 presented a unique opportunity because of low flying levels associated with the pandemic and affected employees at that time having no ability to initiate or participate in the process of a protected action ballot (s 341(2)(d)) or the process of organising and engaging in PIA (s 341(2)(c)). The final TWU argument was that the Australian Airports business team were aware that the Qantas Airways enterprise agreement would pass its nominal expiry date on 31 December 2020 and would then be “open”, which meant being exposed to the possibility of PIA in 2021, the Qantas Airways records proved awareness and sensitivity to this and that this was brought into account in assessing the positives and negatives of various options, and that this became part of the reasoning process for evaluating the options and deciding which to proceed with, which made them a substantial and operative reason for the outsourcing decision.

73    Qantas Airways submitted that certain difficulties arose from the TWU argument, aspects of which the primary judge described as inconsistent with the findings:

(a)    that Mr David’s reasons for making the outsourcing decision on 30 November 2020 were the same as he had for embarking upon the outsourcing proposal in August 2020, being substantially the so-called three imperatives, but that this did not mean that Mr David was not subjectively conscious of other considerations, not inconsistent with the three imperatives;

(b)    that his Honour was satisfied that part of Mr Jones’ reasons for recommendation to Mr David to make the outsourcing decision was to prevent affected employees disrupting services in 2021 by taking PIA when it was hoped services might be getting back to usual and the key concern within the Australian Airports business team in making the outsourcing decision when it was made because of the vanishing window of opportunity caused by the operational disruption, with his Honour further noting in relation to Mr Jones, that he was satisfied that the existence of the open enterprise agreements was a consideration; and

(c)    that his Honour was not satisfied there was any difference between Mr David and Messrs Jones and Hughes in the way they thought about the proposed differences in approach between above the wing and below the wing workforces or any different views as to the risks and rewards of outsourcing.

74    The primary judge enumerated and addressed Qantas Airways’ arguments in response to the TWU case summarised above as follows:

(1)    Qantas Airways submitted that the evidence established that an open Qantas Airways enterprise agreement and the possibility of protected industrial action was always viewed as an implementation risk of outsourcing which was likely to be a greater risk in 2021 than in 2020, but this was distinct from the reasons for making the decision and it was wrong to elevate such a risk assessment into a reason.

His Honour’s response was that the relative risk assessment for implementation in 2020 compared to any future opportunity was central to the view collectively held by the Australian Airports business team as to why there was a vanishing window of opportunity to outsource, and further that he was satisfied that Mr Jones factored as an important component of his risk assessment that the outsourcing decision should be taken at that particular time to prevent affected employees disrupting services in 2021 by taking PIA.

(2)    Qantas Airways submitted that the TWU argument wrongly assumed it was not exposed to PIA until at least some time in 2021 because QGS employees could, after following the necessary protected action ballot procedure, organise and take protected industrial action at any relevant time in 2020, exposing it to PIA by about 63% of the relevant cohort of ground operations employees at all relevant times in 2020 and beyond.

His Honour accepted that this was so, but this was not to the point, reasoning that apart from the obvious fact that no industrial action would have been a particularly effective when planes were not flying, the real concern was to avoid the risk of the two enterprise agreements being open at the same time so that any PIA could involve both workforces and may occur when the planes were able to fly again normally.

(3)    Qantas Airways submitted that there was no documentary consideration of any timing risk of open enterprise agreements or PIA in 2021 until Mr Jones’ speaking notes for the 19 June 2020 GMC meeting, which did not indicate apprehension about the TWU realising an industrial opportunity, the Voice-over annotation from about 20 May 2020 had been contorted, and there was no evidence that Mr Jones presented on these notes to any other meeting, nor any evidence that Mr David ever saw these notes. Afterwards, exposure to PIA received very limited specific attention, referring to the Board pack and Board Notes and although the relevant Qantas Airways witnesses were aware of these matters and conscious of the increased implementation risks in 2021 and their causes, this was relevant only to operational continuity risk.

His Honour’s response is that he had found that there was consideration of a timing risk of open enterprise agreements as early as May and was satisfied that Mr Jones believed, at all material times, that operational risk would increase in 2021 in circumstances of open enterprise agreements and power being concentrated back in the TWU.

(4)    Qantas Airways submitted that, apart from the TWU not fairly characterising its business records, aspects of the timeline of events was against its argument, including that a target date was set for the end of any request for proposal or IHB process as the end of 2020, and there could have been a delay to that timeline into the early months of 2021 so that Qantas Airways would not be implementing any outsourcing proposal until 2021, at a time when both enterprise agreements would be open and both entities would be vulnerable to PIA.

His Honour considered that the fact that on a worst-case scenario the outsourcing decision could conceivably be delayed was of no moment, because it was manifest that if a decision was to be made, the collective view within the Australian Airports team was that it should be made swiftly, with the window perceived to be finite. This involved management of the “so-called” IHB timeline. His Honour observed that while timelines for the process of decision-making undoubtedly contemplated delay if, as the industrial relations consultant had warned, the TWU opportunistically used provision for the IHB to frustrate and attempt to delay the process, there was no doubt the aim was to make the outsourcing decision as soon as it could be made, subject to proper assessment of the risks and effective management of the IHB process.

(5)    Qantas Airways submitted that the TWU’s argument had a more fundamental difficulty in that the relevant factor or consideration at the time of both the outsourcing proposal and the outsourcing decision, was that operational risk was low because of limited flying and staff stand downs and because the employees did not have any entitlement to bargain or take PIA. It went beyond the scope of the word “prevent” in s 340(1)(b) and its legislative purpose to suggest that any aspect of Qantas Airways’ reasoning was to prevent a possible future exercise of rights to bargain and take protected industrial action, which might only arise if the actual decision were to be made at some later point in time when there were greater flying activity. Thus Qantas Airways argued that the outsourcing decision did not prevent anything and the TWU could not point to any direct or immediate thing that was prevented by the outsourcing decision.

His Honour described this submission as misconceived, reasoning that the TWU was correct to submit that the insertion of a requirement that the prevention of the exercise of the workplace right be direct or immediate was a gloss on the words of s 340(1)(b). Rather, the provision directs attention to whether adverse action has been taken “to prevent” the exercise of a workplace right, and there was no basis for adding a requirement that the right be of a particular nature such that it can be characterised and assessed to be sufficiently immediate. His Honour further observed that in any event the outsourcing decision prevented the members of the TWU who were affected employees exercising their workplace right to do something that Qantas Airways did not want to occur and wished to prevent, that is, participation in PIA. His Honour said s 340(1)(b) contemplates acts to prevent employees exercising workplace rights by preventing circumstances arising whereby those rights could be exercised.

(6)    Qantas Airways submitted as a particular illustration of a more general Browne v Dunn complaint that it was never put to Mr David, squarely, in terms or at all, that when he came to make either the outsourcing proposal decision or the outsourcing decision that particular considerations or risks attending the other options considered in June 2020, were present to his mind, or that they were amongst his substantial and operative reasons for making the decisions he did, in August and then in November 2020, nor were such matters ever put to the other relevant witnesses. Qantas Airways submitted that much of the cross-examination on this topic was entirely hypothetical and framed as questions of basic logic in the sense of cause and effect, rather than going into the actual reasoning process employed by the witnesses themselves.

His Honour said that this complaint went nowhere, because, irrespective of the criticisms of the cross-examination, the three centrally important witnesses were cross-examined, often at very considerable length, by reference to documents they had prepared or approved that outsourcing occur in 2020 because of the risk of employees being in a position to bargain and take protected industrial action in 2021. His Honour accepted the TWU’s submission that the proposition that Qantas Airways, and those managers who gave evidence, wanted to prevent its ground handling employees being in a position to bargain and to take protected industrial action, was squarely put.

(7)    Qantas Airways submitted that even if the Court were to conclude that there was a desire to avoid the consequences for operational continuity of enterprise bargaining and PIA, a multitude of factors are likely to come into the mind of a decision-maker when assessing various options and their risks, before going on to significant decisions at later points in time. Qantas Airways submitted that it was not unusual that oral and documentary evidence shows an extensive and detailed consideration of various risks associated with evaluating various options and later the implementation risks associated with one of those options, being the outsourcing of ground operations.

His Honour said Qantas Airways was correct to stress that it was to be expected that the evidence would show extensive and detailed consideration of various “risks” associated with the evaluation of various options and later the implementation risks associated with one of those options, and that it can be relevant that a decision-maker was aware of a risk and gave consideration to it, but this did not mean that the identification of risk means an action was taken for a particular reason. His Honour said this was why the TWU’s submission that the Court can make something significant of the fact that specialist industrial relations legal advice was obtained was misconceived. His Honour said it would have been contrary to common sense if such advice was not obtained. Such advice might be relevant to understand or give weight to representations in documents settled or passed by lawyers, but to draw some adverse inference simply because advice on a certain topic was received would be contrary to principle.

(8)    Qantas Airways submitted that each of Messrs David, Jones, Hughes and Nicholas only ever considered open enterprise agreements and PIA, as relevant to an assessment of operational continuity risk at a different future point in time and there was no evidentiary foundation for a finding that any part of their reasoning process was directed towards enterprise bargaining or PIA per se. His Honour described how this argument was developed by quoting from Qantas Airways’ submissions to the effect that enterprise bargaining and the frequent availability of PIA were a feature of life at Qantas Airways, but PIA never arose as a consideration in relation to the outsourcing decision because it did not give rise to an operational continuity risk, as opposed to an implementation risk. Qantas Airways submitted that it was principally the risk PIA might pose to operational continuity, including in particular if a decision were to be deferred to a future date, that was considered, not the mere fact of the protected action itself.

His Honour accepted that it was unsurprising that the risk PIA might pose to operational continuity would be considered, and that the identification of such a risk does not mean that the prevention of the risk occurring in the future somehow becomes a reason for a decision which would mean the risk would not eventuate, with the focus being on the mind of the decision-maker. However, the relevance of the fact that the relevant risk was identified and discussed was rationally relevant to the assessment of whether Qantas Airways had established that the prevention of that risk eventuating via the workplace right being exercised in the future was not a reason why the outsourcing decision was made in November 2020.

75    The primary judge’s conclusion on the TWU’s primary s 340 case was posed as being the answer to the following question to himself:

Did Mr David decide to outsource the ground operations for one of the prohibited reasons alleged, being preventing the exercise by the affected employees of their workplace right to organise and engage in protected industrial action and participate in bargaining in 2021[?]

His Honour defined this identified proscribed reason as the “Relevant Prohibited Reason”. This was later refined for the purposes of the declaration that was made. His Honour noted that s 361(1) meant that it was presumed that Mr David made the outsourcing decision for reasons that included that reason unless Qantas Airways proved otherwise, and that accordingly the focus of the inquiry was whether that was a substantial and operative reason, although it was not necessary to go so far as to establish that this reason was entirely disassociated from that workplace right. That in turn required his Honour to reach a state of actual persuasion.

76    The primary judge was not satisfied that Qantas Airways had proved on the balance of probabilities that Mr David did not decide to outsource the ground operations for reasons which included the identified proscribed reason. His Honour said that that this conclusion reflected his unease as to the state of the evidence on this fact in issue and in particular Mr David’s evidence viewed in the light of all the other evidence referred to. In making that finding, the primary judge observed that if the question had instead been whether he had reached a state of actual persuasion that this was a substantial and operative reason for Mr David outsourcing the ground operations, he would have answered that in the negative; whereas if the question instead had been whether a substantial and operative reason for Mr Jones endorsing the recommendation to make the outsourcing decision, he would have answered that in the positive. Both sides seize on this in support of their respective arguments in this Court.

77    The primary judge then explained why the denial of the proscribed reason in Mr David’s affidavit had not prevailed by way of three important examples in addition to examples given earlier in the reasons and summarised above, in substance demonstrating to his Honour that the affidavit account of events had been shown to be incomplete:

(a)    in his oral evidence, Mr David accepted that by the time of the outsourcing proposal, a decision to outsource ground handing had been made, subject to the formal request for permission process and the in-house bid process, and that there was very little prospect that the latter would come close to delivering commercial benefits like outsourcing, but this was not to be found in the affidavit;

(b)    the power of attorney was described in Mr David’s affidavit as being a routine authority to negotiate, finalise, amend and execute documents with the third parties (which Mr David never in fact did), but in his oral evidence it was described as authority to make the outsourcing decision, such that the picture that emerged, despite the carefully drawn affidavit, of artificiality, with the differences between the authentic aspects of the oral evidence and the written evidence in chief being sufficient for his Honour to harbour doubts about the persuasiveness of the written evidence;

(c)    the lack of an authentic voice in the affidavit was demonstrated on a point that was otherwise not decisive and of minor importance, being a denial of a proscribed reason by reference to [40] of the amended statement of claim, which his Honour described as a suboptimal way to obtain a genuine account of a lay witness as to facts in issue.

78    The primary judge said that even leaving aside any deficiencies in the affidavit evidence, an independent reason for hesitating to reach the necessary state of satisfaction in relation to Mr David’s evidence was that the case for Qantas Airways was expressly run on the basis that there was no difference between Mr Jones’s reasons for his involvement and Mr David’s reasons. His Honour noted that the affidavit evidence was that Mr Hughes recommended to Mr David that he decide to outsource the ground operations, that Mr Jones agreed with and endorsed that recommendation for the same reasons, and that Mr David made the outsourcing decision essentially for the same reasons, identifying the affidavit paragraph numbers for those assertions of each of those three men. Evocatively, his Honour observed that Qantas Airways’ submissions did not suggest a “cigarette paper of difference” between the motivations of these three men, noting no evidence of any difference as to the differences in approach between above the wing and below the wing, or the risks and rewards of outsourcing. His Honour referred to his earlier satisfaction that Mr Jones was motivated by the identified proscribed reason, and said that the closeness of the working relationship between Mr Jones and Mr David gave some pause in accepting that Mr David was differently motivated.

79    The primary judge’s gave a further independent reason for his scepticism about there being any difference in the motivations of Mr Jones and Mr David related to the oral evidence. His Honour described Mr David as being aware how some concessions would be “unwary” and appeared keen at times to highlight in non-responsive ways aspects of his account that he considered supported the conclusion that he was not motivated by the identified proscribed reason. His Honour explained that he hesitated to reject Mr David’s evidence, because parts of it were evidently candid, but pointed to conventional reasoning about accepting parts of a witness’ evidence and rejecting other parts. His Honour said that this also applied to the position between those two stances of not being satisfied that evidence should be accepted or rejected.

80    The primary judge concluded that after considering all of the evidence the facts proved on the balance of probabilities fell short of a reasonable basis for a definite affirmative conclusion that Mr David did not decide to outsource the ground operations partly to prevent the exercise by the affected employees of their workplace right to organise and engage in PIA and participate in bargaining in 2021. His Honour expressly described that conclusion in another way as being that, while it may be that a substantial and operative reason for Mr David making the outsourcing decision was not the identified proscribed reason, by reference to all the evidence he was not satisfied on the preponderance of probabilities that this had been proven by Qantas Airways. This necessarily entailed a rejection of the TWU’s contention that Mr David cannot have been the sole operative decision-maker.

81    The primary judge noted that while Qantas Airways did not contest the focus of the inquiry being upon not just Mr David, but also Mr Hughes and Mr Jones who, respectively, recommended and endorsed the recommendation to make the outsourcing decision, the evidence supported the conclusion that a substantial and operative reason for Mr Jones’ endorsement was the identified proscribed reason. His Honour said that despite it being uncontroversial that Mr David relied upon Mr Hughes’s recommendation which had been endorsed by Mr Jones, it was not necessary to base his ultimate conclusion on the notion that Mr Jones could be regarded as a decision-maker for the purpose of a proscribed purpose. Rather it was better in this case to have focused on a causal inquiry into the reasons of Mr David at the time the adverse action was taken, and whether Qantas Airways had proved what it needed to in relation to those reasons, taking into account all of the evidence, including the relevance of Mr Jones’s motivations to Mr David’s decision-making, given how closely they worked together.

82    The primary judge also observed that it seemed to him that it was more likely than not that Mr Hughes was also motivated by the proscribed reason identified by his Honour in the same way as Mr Jones, given the nature of their working relationship, the communications between them and the fact that there was no suggestion there was any difference in their views as to the risks, rewards and reasons for the proposed outsourcing. However, his Honour did not consider himself as convinced as he was for Mr Jones. These overtly obiter observations about Mr Hughes and Mr Jones are the effective conclusory foundation for the TWU notice of contention.

83    The primary judge decided the terms of the declaration flowing from the liability judgment, following a separate hearing as addressed in the resultant declaration judgment.

Consideration

Ground 1: The construction of s 340(1)(b)

84    Ground 1 of the Qantas appeal raises for consideration the proper construction of s 340(1)(b). Section 340(1) provides:

340 Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note:    This subsection is a civil remedy provision (see Part 4-1).

85    Section 340(1)(b) prohibits “adverse action” taken by one person against another in order to “prevent the exercise of a workplace right by the other person”. Adverse action is defined by s 342. It is not in contest that the outsourcing decision constituted adverse action.

86    Whilst the words “in order” do not appear at the outset of para (b) prior to the word “to”, as the Full Court said in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; 222 FCR 152 at [126] per Jessup, Tracey and Perram JJ:

… the 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.

That s 340(1)(b) is to be read in the sense that “in order” is implicit in the word “to” was uncontroversial.

87    Qantas alleges that the primary judge erred by construing the phrase “to prevent the exercise of a workplace right” in s 340(1)(b) as extending to adverse action taken to prevent circumstances arising whereby a workplace right, even if not presently in existence, might arise and could be exercised in the future.

88    The submission made in support of ground 1 asserted that the error in question could be discerned from LJ [278] of the primary judge’s reasons. In that paragraph his Honour addressed a submission made by Qantas Airways, and recorded by him at LJ [267] of his reasons, that the outsourcing decision did not prevent anything and that the TWU cannot point to any direct or immediate prevention occasioned by the outsourcing decision. Qantas Airways submitted that the TWU’s submission stretched the concept of prevention so that it extended to any action which is taken with a view to a certain outcome. Qantas Airways contended that it would stretch beyond recognition the word “prevent” and the legislative purpose of that limb of s 340(1) to suggest that any aspect of the reasoning of Qantas Airways in making the outsourcing decision was to prevent a possible future exercise of rights to bargain and take protected industrial action which might only arise at some later point in time.

89    Responding to those contentions at LJ [278] of his reasons, the primary judge said:

Fifthly, the submission that the outsourcing decision “did not prevent anything” and that the Union cannot point to any direct or immediate “prevention” is misconceived. The Union makes the point, correctly, that the insertion of a requirement that the prevention of the exercise of the workplace right be “direct or immediate” involves a gloss on the words of s 340(1)(b). The section directs attention to whether adverse action has been taken “to prevent” the exercise of a workplace right. There is no basis for adding a requirement that the right be of a particular nature such that it can be characterised, by some sort of evaluative assessment, to be sufficiently immediate. In any event, the outsourcing decision prevented the members of the Union who were affected employees exercising their workplace right to do something that Qantas did not want to occur and wished to prevent, that is, participation in protected industrial action. Section 340(1)(b) contemplates acts to prevent employees exercising workplace rights by preventing circumstances arising whereby those rights could be exercised.

90    There is disconformity between the scope of the first ground of appeal and the conclusion which it seeks to challenge. As Senior Counsel for Qantas confirmed in oral submissions, the focus of the challenge made is the last sentence of [278] of the primary judge’s liability judgment reasons. However, the conclusion there made was not founded upon a consideration of whether there was any precondition that the workplace right sought to be prevented must or must not “presently exist” at the time the adverse action is taken, which is the primary contention made on the appeal. Qantas contends that s 340(1)(b) only proscribes adverse action taken to prevent the future exercise of a workplace right that the targeted person presently has at the time that the adverse action is taken. Because the Qantas Airways employees and the QGS employees had no present right to participate in PIA at the time of the outsourcing decision, Qantas submits that there could be no finding of a contravention of s 340(1)(b) in respect of those employees.

91    This was not a contention squarely put to the primary judge by Qantas Airways. It may have been impliedly put, but it was essentially first raised on the appeal. However, it was not the subject of any objection by the TWU. If leave is required, we would grant it. However, in fairness to the primary judge it ought to be recorded that his Honour was never really asked to grapple with, or at the least never squarely asked, the constructional question that we now turn to address.

92    The submission made by Qantas on the appeal has both a textual and purposive dimension. We will deal with each in turn. Although we can discern some limitations upon the scope of the provision, we are ultimately not persuaded that the limitation upon the protective reach of s 340(1)(b) for which Qantas contended is justified.

93    The textual basis for the construction contended for by Qantas was largely focussed upon the phrase “workplace right” and the definition of that expression given in s 341. Put in simple terms, Qantas contends that the present tense in which the phrase “workplace right” is defined in s 341 supported the proposition that the workplace right referred to in s 340(1)(b) must be a presently held workplace right rather than a right which may be held in the future by the person against whom adverse action is taken.

94    To consider that contention it will be necessary to consider the terms and function of s 341, its legislative predecessors and the judgment of the Full Court in Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768; 104 FCR 440 per Wilcox, Kiefel and Merkel JJ. Burnie Port was relied upon by Qantas as an authority which had considered a predecessor of s 341 and where it was concluded that the expression “is entitled to the benefit of an instrument or an order of an industrial body” referred to a present or existing entitlement, rather than a future or prospective entitlement.

95    Having considered those arguments, the textual considerations relied upon by Qantas based on s 341 are unpersuasive. No assistance is relevantly provided by the judgment in Burnie Port. A proper understanding of the way in which s 341 has been framed, including by reference to its legislative history, reveals that s 341 is temporally neutral in its intended application to the phrase “workplace right” in s 340(1) and that the temporal frame for the description “workplace right” is instead provided by s 340(1) itself.

96    Having explained the basis for that conclusion we will turn to the other strand of the argument made by Qantas which contended that by reference to both textual and purposive considerations, the word “prevent” is not so broad as to engage the prevention of a workplace right that is not in existence at the time the adverse action is taken and may not or will not ever come into existence. Whilst we consider that the word “prevent” in its context does not extend to the prevention of an event which the person taking adverse possession has not anticipated, we are unable to discern any further textual limitation flowing from that term. By reference to purpose, it may well be the case that the protective reach of s 340(1)(b) was not intended to extend to a person who cannot hold or exercise the workplace right in question at any relevant time in the future. That, however, is not a limitation which the facts of this case engage and a purposive analysis does not otherwise reveal limitations of the kind contended for by Qantas.

97    We turn then to the textual considerations relating to the phrase “workplace right”. Before setting out the terms of s 341 upon which Qantas heavily relied, it is appropriate to commence with some observations about the terms of s 340(1)(b) itself.

98    Section 340(1)(b) prohibits a person from taking adverse action against another in order to or, in other words, with the reason or intent to prevent the exercise of a workplace right by the other person. That reason need only be a reason for the taking of the adverse action, but it nevertheless must be an operative and substantial reason as the discussion at [136] below explains.

99    The provision prohibits conduct which is aspirational in the sense that the adverse action contemplated by the provision is action taken with the ambition of preventing the future exercise of a workplace right by the person against whom that action is taken. The exercise sought to be prevented can only be an exercise which the perpetrator of the conduct anticipates will or may be taken in the future by the target of the adverse action. In that respect, the provision is obviously focussed on the future and its protective subject is the future possible exercise of a particular workplace right by the targeted person which the perpetrator has anticipated. There is no textual indication that its protective subject is the holding of a particular workplace right by the targeted person at the time adverse action is taken. That is the subject of s 340(1)(a)(i).

100    The prospective nature of the exercise of the workplace right which is the subject of the provision’s protection provides a temporal frame which does not support an implication that the workplace right must necessarily be present and existing at the time the perpetrator embarks upon preventing a possible future exercise of the workplace right. The fact that the protective subject of a present and existing workplace right is dealt with elsewhere also tends against any such implication. The framing of the provision and the natural reading of it does not suggest the limitations for which Qantas contended. There are, therefore, strong textual indications found in s 340(1)(b) itself which would need to be overcome or negated by the reliance placed by Qantas on the terms of s 341.

101    Contrary to the submission made by Qantas, there is nothing useful to be drawn in favour of its construction from the fact that workplace rights are described in s 341 in the present tense. The intended temporal frame for the description “workplace right” is, as we shall detail, not provided by s 341 but instead provided by s 340, as is apparent from the variation of temporal language there utilised.

102    Section 341 is in the following terms:

Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)    a conference conducted or hearing held by the FWC;

(b)    court proceedings under a workplace law or workplace instrument;

(c)    protected industrial action;

(d)    a protected action ballot;

(e)    making, varying or terminating an enterprise agreement;

(f)    appointing, or terminating the appointment of, a bargaining representative;

(g)    making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)    agreeing to cash out paid annual leave or paid personal/carer's leave;

(i)    making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j)    dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)    any other process or proceedings under a workplace law or workplace instrument.

Prospective employees taken to have workplace rights

(3)    A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Note:    Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.

Exceptions relating to prospective employees

(4)    Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.

(5)    Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).

103    As the heading to s 341 suggests, the provision is definitional. In relation to the phrase “workplace right” the Dictionary provided by s 12 says “see subsection 341(1)”. However, s 341(1) is not an orthodox definitional provision which states what the term being defined means. Despite its title the provision does not state directly what “workplace right” means. Rather, it states the circumstances in which a person has a workplace right: “A person has a workplace right if the person …”. What the expression “workplace right” actually means is only given indirectly through the description as to when a person has a workplace right. The use of the present tense in s 341(1) is the product of providing the definition of “workplace right” by those abstract means. Grammatically, when a person has a workplace right is best described in the present tense. For instance, it would be incongruous and illogical to state in s 341(1) that a person has workplace if they will be entitled the benefit or workplace law, instrument or order or if they will be able to participate in a process or proceeding. The exclusive use of the present tense in s 341(1) is thus entirely explicable and in keeping with its particular definitional character.

104    The premise which underlies the approach to construction taken by Qantas is that the use of the present tense in s 341 is intended to have the additional function of regulating the temporal frame by which the expression “workplace right” in s 340(1)(b) engages the prohibition provided for by that provision. If such an additional function was intended it would logically extend to each limb of s 340(1) as well as each of the numerous occasions that the expression “workplace right” is used in the FW Act, so that “workplace right” uniformly means, wherever and whenever used, a presently existing workplace right. If that were the case, the consequence is that the protections provided for by s 340 as well as s 343 (dealing with coercion in relation to the exercise or proposed exercise of a workplace right) and s 345 (which prohibits misrepresentations workplace rights and their exercise) would be significantly narrowed.

105    It would be odd and productive of absurd results if that were so. It would be particularly odd if that function was applicable to a provision like s 340 which, by use of words like “has”, “proposes”, “proposed” and “prevent”, provides for a distinct temporal frame for each of its various limbs. Furthermore, it would be odd for such an objective to be given effect to impliedly rather expressly, particularly as the use of the present tense in s 341 has an obvious alternative function.

106    It is also instructive to consider the legislative history of s 340 and s 341. Although dealing with a different question, in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; 281 FCR 421 at [21]-[31], Bromberg J (with whom Mortimer J agreed) considered the function of s 341(1) and provided a short history of the predecessor provisions to s 340 and s 341. It suffices for present purposes to say that federal industrial law has prohibited adverse action actuated by certain specified circumstances since 1904, commencing with the circumstances of a person being a member of a union, holding an office in a union or being entitled to the benefit of an industrial agreement or award. The list of actuating circumstances has grown substantially over time. Before the enactment of the FW Act, the actuating circumstances were labelled “prohibited reasons” under the Workplace Relations Act 1996 (Cth). With the enactment of the FW Act, a different drafting style was adopted and the list of actuating circumstances was, somewhat arbitrarily, organised into two groups. The first is labelled “workplace right” and listed in s 341, and the second is labelled “industrial activity” and is listed in s 347.

107    It is helpful to refer to the text of the predecessor provisions to s 340 and s 341 in order to show the structure of those provisions, particularly by reference to the temporal frame employed by the drafting technique there utilised. In order to address the reasoning in Burnie Port, it is necessary that we do so by reference to the provisions considered in that judgment, being s 298K and s 298L of the Workplace Relations Act. In place of those provisions, the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) inserted s 792 and s 793 into the Workplace Relations Act. Those provisions were the immediate predecessors of s 340 and s 341. However, their text and structure was not relevantly different to s 298K and s 298L.

108    Unlike s 340, s 298K of the Workplace Relations Act did not provide a temporal dimension to confine its operation, but instead adopted the neutral language of the present tense:

298K Dismissal etc. of members of industrial associations etc.

(1)    An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)    dismiss an employee;

(b)    injure an employee in his or her employment;

(2)    A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)    terminate a contract for services that he or she has entered into with an independent contractor;

(b)    injure the independent contractor in relation to the terms and conditions of the contract for services;

(c)    alter the position of the independent contractor to the independent contractor’s prejudice;

(d)    refuse to engage another person as an independent contractor;

(e)    discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor.

109    Conversely, unlike s 341 which uniformly adopts the present tense denoted by the word “is”, the predecessor to that provision, s 298L, specifically included a temporal dimension, variously denoted by the words “is”, “has” and “proposes”, among others:

298L    Prohibited reasons

(1)    Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

(a)    is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or

(b)    is not, or does not propose to become, a member of an industrial association; or

(c)    in the case of a refusal to engage another person as an independent contractor:

(i)    has one or more employees who are not, or do not propose to become, members of an industrial association; or

(ii)    has not paid, or does not propose to pay, a fee (however described) to an industrial association; or

(d)    has refused or failed to join in industrial action; or

(e)    in the case of an employee—has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or

(f)    has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or

(g)    has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or

(h)    is entitled to the benefit of an industrial instrument or an order of an industrial body; or

(i)    has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:

(i)    compliance with that law; or

(ii)    the observance of a person’s rights under an industrial instrument; or

(j)    has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or

(k)    has given or proposes to give evidence in a proceeding under an industrial law; or

(l)    in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions—is dissatisfied with his or her conditions; or

(m)    in the case of an employee or an independent contractor—has absented himself or herself from work without leave if:

(i)    the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and

(ii)    the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or

(n)    as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

(i)    lawful; and

(ii)    within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules.

110    The evident purpose of s 298L of the Workplace Relations Act and s 341 of the FW Act is, in each case, to provide a description of the actuating circumstance or circumstances which engage the prohibition dealt with respectively in s 298K or s 340. Section 298L directly provided the temporal dimension which engaged the prohibition for each of the actuating circumstances it described. The different drafting style adopted for s 341, where each actuating circumstance was only described using the present tense, required that the temporal frame which limits when the prohibition is engaged be transferred to the provision, s 340, which provided that prohibition.

111    That analysis demonstrates that the temporal frame formerly included in the predecessors to s 341 is now addressed directly by s 340. It confirms the conclusion reached above that, in its application to s 340, the present tense adopted in s 341 is intended to be neutral.

112    Furthermore, it should not be thought that the changes made by the FW Act were intended to narrow the scope of the protections conferred by Pt 3-1. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) relevantly said at [1336]:

The consolidated protections in Part 3-1 are intended to rationalise, but not diminish, existing protections. In some cases, providing general, more rationalised protections has expanded their scope.

113    Turning then to Burnie Port, the important issue raised on that appeal was, as was said at [22] of that decision, “whether s 298L(1)(h) [of the Workplace Relations Act] is only concerned with a present or existing, rather than a contingent or prospective, entitlement to the benefit of an industrial instrument or order”. The appellant in Burnie Port sought to employ two persons on the basis that each candidate would sign an Australian Workplace Agreement (AWA) under the Workplace Relations Act before commencing employment. One candidate, Mr Stephen Gerard Rolls, wished to be employed under the relevant enterprise bargaining agreement (EBA) and not under an AWA. After indicating this to the appellant in his interview for the position, Mr Rolls was not offered employment in favour of two candidates who each agreed to enter an AWA. The respondent union, who was a party to the EBA, claimed that by refusing to employ Mr Rolls because he would not sign the AWA, and thereby to renounce the benefit of employment under the EBA, the appellant had contravened s 298K(1) of the Workplace Relations Act: see Burnie Port at [7]-[10]. In response, the appellant said that it could not have contravened s 298K(1) of the Workplace Relations Act because at the time of the refusal Mr Rolls was not a person who “is entitled to the benefit” of the EBA in accordance with s 298L(1)(h). That was so because Mr Rolls, not being an employee at the time the appellant refused to employ him, was not entitled to the benefit of the EBA.

114    Section 298L(1) has been set out above and relevantly provided that the conduct in s 298K (which is referred to as adverse action in the current language of the FW Act) is for a prohibited reason “if it is carried out because the employee, independent contractor or other person concerned … is entitled to the benefit of an industrial instrument”. In the current language of the FW Act, the equivalent protection to that addressed in Burnie Port is the workplace right to an entitlement to the benefit of a workplace law, instrument or order (see s 341(1)(a)). Unlike s 340 and s 341, in Burnie Ports the protection provided under the Workplace Relations Act did not extend to the exercise or proposed exercise of entitlements under an industrial instrument. Section 298L(1)(h) was, unlike many of its neighbours, confined to a specific temporal dimension. It could only be engaged in the circumstance of an employee who “is entitled” to the benefit of an industrial instrument. The state of affairs addressed by that paragraph was unequivocally the present, and not the future, as the following observation made by the Full Court in Burnie at [24] confirms:

A major difficulty confronting the Union’s proposed interpretation of s 298L(1)(h) is that in s 298L(1), when the legislature intended to distinguish between a past, present or future event or state of affairs, it did so. For example, s 298L(1)(a) refers to where the person the subject of the proscribed conduct “is, has been, proposes to become or has at any time proposed to become” a member etc of an industrial association. The careful use of terms in s 298L, suggests that when the legislature used the words “is entitled” in s 298L(1)(h), it intended to refer to a present or existing, rather than a future or prospective, entitlement.

115    It is for that reason that the conclusion arrived at [23] by the Full Court in Burnie Port based on the text of the provision was that:

The ordinary and natural meaning of ss 298K(1) and 298L(1)(h) is that, when the proscribed conduct occurs, the person concerned has, or enjoys, a present or existing legal entitlement to the benefit of an industrial instrument or order.

116    The reasoning in Burnie Port is limited to the specific temporal dimension to which the provision in question was there confined. As the Court said at [32] “our decision is confined to the construction of ss 298K(1)(d) and 298L(1)(h) and is not intended to reflect directly, or indirectly, on the operation of other subsections in either section”.

117    Burnie Port is of no assistance to Qantas. It cannot and does not say anything at all about the temporal dimension applicable to the workplace right referred to in s 340(1)(b).

118    For those reasons it is wrong to contend, as Qantas did, that the present tense utilised in s 341 means that when s 340(1)(b) speaks of the exercise of a workplace right it means the exercise of a presently existing workplace right and not the exercise of a prospective workplace right.

119    A further contention made by Qantas based on the text of the provision was directed to the so-called “gap” that s 340(1)(b) was said to be intended to fill. Qantas contended that s 340(1)(b) was, when introduced in 2009, clearly intended to supplement s 341(1)(a). It was said that s 341(1)(a) relevantly proscribes action taken because of the existence of a workplace right ((a)(i)), a past exercise or non-exercise of a workplace right ((a)(ii)), or a current or past proposed intention in respect of the exercise or non-exercise of such a right ((a)(iii)). However, Qantas said, s 341(1)(a) does not proscribe adverse action where the person with the workplace right has no past or present intention to exercise the right, but action is taken in anticipation of such an intention being formed. For that reason, Qantas contended that, read as a whole, s 341(1)(b) fills that gap by proscribing adverse action done to prevent the person with the workplace right exercising that right in the future, even though that person has no past or present intention to exercise the right.

120    The problem with that analysis is that it merely begs the question rather than provides an answer. It is based upon the unsupported premise that the protection afforded by s 341(1)(a) extends only to action taken in relation to a workplace right which is presently existing at the time that the adverse action was taken. It may be accepted that that is the case in relation to s 341(1)(a)(i) because the text of that sub-paragraph tells us that this limb of para (a) is confined to a workplace right presently held. However, for that conclusion to be made of s 341(1)(a)(ii)-(iii) as well as s 341(1)(b), the additional words “presently held” must be implied. As already addressed, there is no textual basis for such an implication and the temporal frame provided for each of the limbs of s 341(1)(a) in question speaks against it. As does context and purpose, bearing in mind that an object of Pt 3-1 is “to protect workplace rights”: s 336(1)(a). Can it sensibly be concluded that Parliament intended to deny the protective reach of s 340(1)(a)(ii) or (iii) to a person who has or has not exercised or proposed to exercise “at any time” a workplace right, for instance the taking of PIA, because at the time retributive adverse action is taken (which could be taken weeks or months later) the workplace right in question was no longer presently held? The clear answer is that it cannot, or at least that there is no coherent reason for it to have done so.

121    It should further be observed that action taken against an employee because the employee “proposes” to do certain things has been proscribed by federal industrial legislation since 1920. Adverse action taken with the intent to “prevent” an employee from doing certain things was also prohibited under the Conciliation and Arbitration Act 1904 (Cth) from 1920 and its successors until 1996 when the Industrial Relations Act 1988 (Cth) was replaced by the Workplace Relations Act. The use of the word “prevent” was then re-enacted in s 340(1)(b) of the FW Act.

122    The Act which first introduced protections of that kind was the Commonwealth Conciliation and Arbitration Act 1920 (Cth), which inserted subsection (1A) into s 9 of the Conciliation and Arbitration Act in the following terms:

(1A)    An employer shall not threaten to dismiss an employee, or to injure him in his employment, or to alter his position to his prejudice—

(a)    by reason of the circumstance that the employee is, or proposes to become, an officer or member of an organization, or of an association that has applied to be registered as an organization, or that the employee proposes to appear as a witness or to give evidence in a, proceeding under this Act; or

(b)    with the intent to dissuade or prevent the employee from becoming such officer or member or from so appearing or giving evidence.

123    The structural and temporal frame of those provisions was not relevantly different to their modern counterparts. The text supports the proposition that the protections conferred extended to the future exercise of the rights or capacities in question and was not denied by those rights or capacities not being extant at the time action was taken against the protected subject. Take for instance the protection conferred on appearing as a witness in a proceeding. Clearly the protected exercise which was contemplated was prospective and the idea that there must be some extant capacity or right to appear as a witness is neither textually supported nor cogent.

124    Furthermore, despite the existence of these protections in federal industrial law for over a century in relation to the “proposes” limb and for some 76 years in relation to the “prevent” limb, no decision to which we were referred or that our own research has discovered stands for the proposition that the right or capacity in question has to be extant at the time that action is taken against the protected subject of the provision. Indeed, the limited authority on the word “propose” suggests otherwise: see Dowling v Fairfax Media Publications Pty Ltd (ACN 003 357 720) (Formerly John Fairfax Publications Pty Ltd) [2008] FCA 1470; 176 IR 346 at [88]-[89] per Jagot J.

125    We turn then to consider the textual and purposive based contention relied upon by Qantas which focussed on the word “prevent”.

126    It is not an element of the cause of action provided for by s 340(1)(b) that there be actual prevention of the exercise of the workplace right in question. As the passage from Toyota Motor Corporation cited above at [86] alludes to, the paragraph is not concerned with whether the adverse action had the effect of preventing the exercise of a workplace right. Qantas, however, raises an issue as to whether the exercise of the workplace right must be preventable before the prohibition in s 340(1)(b) is engaged. Qantas contends that the word “prevent” is not so broad as to engage the prevention of a workplace right that is not in existence at the time the adverse action is taken and may not or will not ever come into existence.

127    As the primary judge stated at [14] of the declaration judgment by reference to the Oxford English Dictionary Online, the natural meaning of the verb “prevent” used in the context provided by s 340(1)(b) is to preclude the occurrence of an anticipated event or to render the event impractical or impossible by anticipatory action. It logically follows that a person cannot take action with the aim of preventing an event which that person does not anticipate. In that sense it can be said that the word “prevent” in the context in which it is used in s 340(1)(b) does not extend to the exercise of a workplace right not anticipated by the person taking the adverse action at the time it is taken. That limitation correctly focusses upon the subjective mind or the perception of the person taking the adverse action. It is not a textual limitation on the breadth of the word “prevent” discernible from an objective assessment of whether the person targeted by the adverse action is, may or ever will exercise the workplace right in question. Whilst that limitation may be accepted, it is not the limitation for which Qantas contended. A limitation based upon the objective unlikelihood of the targeted person holding or exercising a workplace right in the future is not available from the text of the provision.

128    Taking a purposive rather than a textual approach to the concept of “prevent” in s 340(1)(b), it may be true that the protective reach of the provision was not intended to extend to a person whom, objectively assessed, is not capable of holding and exercising the workplace right in question at any relevant time in the future. Save for what follows, that is not this case and whether the protective reach of the provision has that limitation should be left to be determined by a case in which the issue is directly raised. We say that for reasons including that it is at least arguable that an anti-victimisation provision focused upon the perceptions of the perpetrator which seeks to protect an attribute or the exercise of some capacity or right, may extend to action taken because that capacity or right is mistakenly imputed to the targeted person. As Bromberg J said in Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528; 271 IR 139 at [70]:

Victims of various forms of discriminatory conduct are protected not only against action taken because the victim has a particular attribute (for example sex, race, religion or disability) but also where such an attribute has been wrongly imputed to the victim. In relation to persecution “for reasons of” a protected attribute as a criterion for a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth), Burchett J (with whom O’Loughlin and Nicholson JJ agreed) said (at 568) in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565:

The words “persecuted for reasons of” look to [the persecutor’s] motives and attitudes, and a victim may be persecuted for reasons of race or social group, to which they think he belongs, even if in truth they are mistaken. Hitler's ghastly views about race, for instance, led to persons being classified as Jewish who had appropriately regarded themselves as German; the perception of the authorities was then the important reality which determined their fate.

129    In stating, as we have above, that this is not a case where the targeted person or persons are incapable of exercising a workplace right in question, we are conscious that at its most ambitious the submission made by Qantas did say that employees would not be capable of exercising the workplace right in question because they would not be employees of Qantas Airways or QGS shortly after the adverse action was taken. That contention is based on the idea that the protective reach of the provision does not extend to persons made incapable of exercising the workplace right in question by reason of the adverse action taken against them. That is a construction which would defeat the very object or purpose of the provision and must be rejected. It is therefore correct to say that in so far as the provision may not extend to the protection of workplace rights incapable of being relevantly exercised in the future by the targeted person, the facts here do not bring this case within the scope of any such limitation.

130    We turn then to consider the circumstance of a targeted person whose future exercise of the relevant workplace right is capable of being anticipated but who may or may not exercise that right in the future. We can discern no purposive basis for concluding that the prohibition in s 340(1)(b) is not engaged by reason of the likely future exercise of the workplace right being uncertain. The provision is directed at an event anticipated to occur in the future and thus necessarily attended with some degree of uncertainty. If the objective existence of some uncertainty was a disqualifying factor, the provision could be bereft of any operative utility in an important range of circumstances warranting protection. Nor do we consider that the degree of objective uncertainty can provide a cogent dividing line. Where would such a line be drawn? Is the engagement of the prohibition dependent upon a high likelihood, a likelihood, or merely the real possibility that the workplace right will be exercised? The answer in each case is “no” because objective uncertainty is not discernible as a limiting mechanism employed by the provision. That is so for reasons including because a different limiting mechanism is discernible already. The future exercise of a workplace right must be anticipated by the person taking action to prevent it. It is in that requirement that any requisite proximity between the act of preventing and the future exercise of the workplace right is to be found.

131    We turn then to consider by reference to the word “prevent” whether a necessary precondition to the engagement of the prohibition in s 340(1)(b) is that the target of the adverse action must, at the time of that action, hold or be in the exercise of the workplace right in question. We do not think that the word “prevent” adds very much to the purposive analysis. Given that the purpose of the provision is to protect the future anticipated exercise of a workplace right by the person being targeted by the adverse action, it is difficult to discern a rationale as to why the holding or exercise of a presently existing workplace right would, as a necessary prerequisite of its engagement, serve the protective objective of the provision or any other legislative purpose.

132    True it may be that, in at least some circumstances, the holding or exercise of a particular right may make it more likely that the workplace right will be exercised in the future. But the fact that the right to an entitlement to take sick leave is exercised today, of itself, says nothing definitively or even predictively about whether it will be exercised tomorrow, next week or any time in the future. If a limitation was intended by reference to the future likelihood of the exercise of the workplace right, which for reasons already canvassed we think it is not, the holding or exercise of a workplace right at the time adverse action is taken would be an arbitrary tool lacking any apparent rationale.

133    What rational basis is there for concluding that an employee on leave is within the protective reach of the provision when her employment is terminated by reason of the employer’s desire to be relieved of the burden of the future exercise of that entitlement, whereas the employee without a presently existing right or capacity to take leave who gives prior notice that he or she will take leave once the right to do so has accrued, and whose employment is terminated for the same reason, falls outside the protection of the provision? An example of incongruity has been provided already in relation to a person victimised for appearing as a witness in a proceeding. The modern analogue of the provision in question is found in s 341(1)(b) read with s 341(2)(b). Another example is the workplace right to take a role or responsibility under a workplace law such as the role of a Health and Safety Representative (see s 341(1)(a) in combination with Div 4 of Pt 7 of the Occupational Health and Safety Act 2004 (Vic)). Would a person sacked in order to prevent that person taking up such a role be denied protection, because prior to being elected into the role and at the time the preventive action was taken, the person had no presently existing workplace right to hold that role?

134    Another incongruous result was exemplified in the submissions of the TWU. If an employer sacks its workforce to prevent employees taking PIA the day before the nominal expiry date of the applicable enterprise agreement or prior to a protected action ballot, on the construction contended for by Qantas, the employer will not contravene s 340(1)(b). If, however, the employer sacks its workers for the very same purpose the day after the nominal expiry of the agreement and after a successful ballot there will be a contravention.

135    It is, of course, preferable to adopt a construction that avoids a consequence which appears irrational or unjust: Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493 at [48] per French CJ, Hayne, Crennan and Kiefel JJ. The limitations suggested by Qantas are also antithetical to the beneficial and remedial purpose of the provision in question: PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; 274 FCR 225 at [22] per Rangiah and Charlesworth JJ; Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; 191 FCR 212 at [19]-[22] per Gray and Bromberg JJ; Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [35] per Katzmann J.

136    The purposive rationale Qantas proffered for the distinction for which it contended is unpersuasive. It was said that the logical consequence of a construction of the provision in which the exercise of future workplace rights is protected is that any termination of employment is apt to engage s 340(1)(b) because the termination would have the effect of preventing the exercise of future workplace rights and an employer will be subjectively conscious of that fact. However, the argument is misconceived. A termination of employment or any other form of adverse action will only engage s 340(1)(b) where an operative and substantial reason for the adverse action taken is to prevent the exercise of a workplace right. A subjective consciousness or awareness by the employer that the consequence of a termination of employment will be that workplace rights will not be able to be exercised by the employee in the future, does not provide a basis for a finding that the prevention of the exercise of those future workplace rights was an operative and substantial reason for the termination. Just as the loss of capacity to exercise an extant workplace rights does not, of itself, spell a contravention of s 340(1)(b), neither will the loss of a future workplace right, of itself, result in a contravention.

137    Nor is there merit in the submission made that the primary judge erred in stating at LJ [278] that “[s]ection 340(1)(b) contemplates acts to prevent employees exercising workplace rights by preventing circumstances arising whereby those rights could be exercised”. All his Honour was saying is that the provision contemplates that “to prevent the exercise of a workplace right by another person” can be done directly or indirectly. Indirect prevention is not excluded by the text. Indeed, if that was intended, the word “directly” could have been inserted before “prevent”. Furthermore, the mischief sought to be avoided is the prevention of the exercise of a workplace right. To best effectuate that purpose the provision should be read as covering both direct and indirect means by which adverse action is taken with the intent to prevent the exercise of a workplace right.

138    Finally, given the conclusions reached already, it is not necessary to consider in detail a response made by the TWU that if a presently existing workplace right is required as a precondition of engagement, the holding of a contingent workplace right would suffice. The purposive indications mentioned already would provide support for that alternative approach to construction. Questions may be raised, however, as to the point at which a workplace right may be regarded as contingent. For instance, the characterisation of the workplace right to take PIA as contingent where the only precondition necessary for its exercise was the authority to be given by a protected action ballot seems readily available. That characterisation may be more difficult where the temporal precondition of the passing of the nominal expiry date of an existing enterprise agreement, provided for by s 417, has not yet been satisfied. Having said that, the purpose of the provisions in question and the mischief they seek to avoid would tend to suggest that a broad view should be taken as to when a workplace right may properly be regarded as contingent.

139    Ground 1 of the Qantas appeal must, accordingly, be dismissed.

Grounds 2 and 3: Whether Qantas Airways discharged the onus of rebutting the presumption under s 361(1)

140    Grounds 2 and 3 are pleaded in the alternative, challenging the primary judge’s conclusion that Qantas Airways had not discharged the onus of rebutting the presumption in s 361(1). Section 361 provides:

361    Reason for action to be presumed unless proved otherwise

(1)    If

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

141    As the competing arguments rely upon the terms of the errors alleged on the part of his Honour, it is convenient to reproduce those grounds as pleaded:

[2]    The primary judge erred in failing to find that Mr David’s decision to outsource Qantas [Airways]’ ground operations was not made to prevent affected employees in 2021 from organising or engaging in protected industrial action or a protected action ballot or participating in enterprise bargaining (Reasons [288], [302]), in circumstances where:

(a)    the primary judge had conflated, wrongly, the possibility of greater operational continuity risk in 2021 in the event that the outsourcing decision was deferred with a substantial and operative reason for making the outsourcing decision in 2020;

(b)    the primary judge, correctly, was not persuaded that Mr David made the outsourcing decision for a proscribed reason;

(c)    the primary judge found, correctly, that Mr David did have as substantial and operative reasons for the decision that it would serve the three imperatives of cost saving, cost variability and avoiding capital expenditure, and those reasons were convincingly sufficient to explain why Mr David made the decision;

(d)    there was no basis to equate, or to treat as relevantly indistinguishable, Mr David’s state of mind and Mr Jones’ state of mind;

(e)    the course of events and objective circumstances contradicted the proposition that Qantas [Airways] was motivated to make an outsourcing decision to prevent a protected action ballot, protected industrial action or enterprise bargaining.

[3]    Even if the primary judge was correct to conclude that the outsourcing decision was made to avoid operational disruption or operational continuity risk in 2021, the primary judge erred in concluding that such an intention could support a conclusion that that decision was made to prevent affected employees from organising or engaging in protected industrial action or a protected action ballot or participating in enterprise bargaining in 2021, in that this wrongly equated a potential cause of operational disruption or operational continuity risk with the reasons or intent for making that decision: Reasons [114], [131]–[133], [137], [194], [201], [255], [272], [274]–[278], [281].

142    As a preliminary matter, it is important to note that the declaration is not in fact, as pleaded for both grounds 2 and 3, that the outsourcing decision was “made to prevent” the exercise of the identified workplace rights, but rather that the outsourcing decision was made “for reasons which included” preventing the exercise of the identified workplace rights. That much is clear from the language of the declaration itself, supported by the reasons standing behind it, both in the liability judgment and in the declaration judgment giving reasons for the specific framing of the declaration. The declaration judgment did not depart from the liability judgment, but it did provide some additional reasons to explain how and why the particular declaration came to be made. Qantas’ appeal is necessarily from that declaration, not from the reasons for making it, although of course the reasons in either the liability judgment or the declaration judgment may reveal that it was made upon the basis of a vitiating error.

143    It is convenient to frame the consideration of these two grounds by reference to a recent comprehensive summary of the settled principles that apply to s 361(1) in Alam at [12]-[14] per White, O’Callaghan and Colvin JJ:

[12]    Section 361(1) creates a rebuttable presumption:

…

Its purpose is to throw onto respondents the onus of proving that which is peculiarly within their knowledge: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [50] (French CJ and Crennan J), citing General Motors–Holden’s Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 12 ALR 605 at 617.

[13]    As already noted, the appellant alleged that NAB had breached s 340(1)(a) of the FW Act by dismissing her because of her exercise of workplace rights in making complaints or inquiries and because of her foreshadowed exercise of a workplace right in making an application to the FWC, respectively. Accordingly, s 361 was engaged. It had the effect that it was to be presumed that NAB had terminated her employment because of her exercise (or foreshadowed exercise) of these rights unless NAB proved otherwise.

[14]    Several matters bearing upon the application of s 361 in relation to s 340 are settled:

(a)    in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];

(b)    the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];

(c)    an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ).

(d)    the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];

(e)    the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];

(f)    while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];

(g)    the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]-[106];

(h)    even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);

(i)    the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and

(j)    adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).

144    Further principles and in particular the two preconditions for engaging s 361(1) are discussed under Qantas appeal ground 5 at [246]. To engage s 361(1), all that was needed was that the TWU alleged, by its pleaded case, that Qantas Airways took the action of making the outsourcing decision via Mr David for reasons that included the particular reason of preventing the exercise of identified workplace rights as proscribed by s 340(1)(b), and that the evidence was consistent with the hypothesis that Qantas Airways was actuated to take the action by the reasons alleged. Section 361(1) then operated to create a presumption that the outsourcing decision was made for reasons that included that as a substantial and operative reason. It was then for Qantas Airways to rebut that statutory presumption.

145    No issue is overtly taken by Qantas as to the operation of s 361(1) having been engaged, so as to cast an onus on Qantas Airways to prove that the outsourcing decision was not made for a reason that included a proscribed reason.

146    The primary judge did not doubt that the three commercial imperatives relied upon by Qantas Airways for making the outsourcing decision were substantial and operative. Making and ultimately implementing the outsourcing decision was clearly important to Qantas Airways because it was highly beneficial for those commercial reasons, and that was likely to be so at any time. His Honour accepted the evidence of Mr David that these were substantial and operative reasons for making the outsourcing decision. However, that was only one side of the equation. In ordinary, pre-pandemic circumstances, there was an ever present potential countervailing detriment for Qantas Airways in making and implementing such a decision, by way of the risk of operational disruption, or the risk of industrial disruption, or both, either of which could have overwhelmed the three positive commercial imperatives.

147    Those potential detriments can conveniently be characterised for the purpose of these reasons as countervailing imperatives to do what could be done to minimise or eliminate such risks. Unlike Qantas Airways’ three essentially timeless beneficial commercial imperatives, avoiding or minimising these two negative countervailing imperatives was temporarily enhanced due to the pandemic-induced substantial grounding of the Qantas Airways fleet of aircraft. Qantas Airways was presented with an historic opportunity to completely, or almost completely, avoid the occurrence of both risks so long as that situation prevailed. The relevant countervailing imperative was the risk of industrial disruption, because of its nexus to workplace rights.

148    The primary judge effectively found that the three commercial imperatives and the prevention of the risk of industrial action by the exercise of workplace rights identified by his Honour could coexist as reasons for the outsourcing decision, with the latter being a proscribed reason. The identified proscribed reason was found by his Honour not to have been excluded by Qantas Airways as substantial and operative as required by s 361(1). Each of the minor errors in pleading grounds 2 and 3 must be approached with the clear understanding that his Honour did not need to go so far as to make any positive factual finding that the proscribed reason actually existed. If his Honour was not satisfied that Qantas Airways had rebutted the statutory presumption that such a reason was substantial and operative, then the presumption operated to make that so.

Ground 2

149    This ground challenges the conclusions reached by the primary judge at LJ [288] and [302] as follows, being the paragraphs that contain the conclusion that the onus in s 361(1) had not been discharged so as to give rise to the declaration:

[288]    I am not satisfied that Qantas has proved on the balance of probabilities that Mr David did not decide to outsource the ground operations for reasons which included the Relevant Prohibited Reason. As will already be obvious, this conclusion reflects my unease as to the state of the evidence on this fact in issue and, in particular, Mr David’s evidence when viewed in the light of all the other evidence to which I have made reference.

…

[302]    In the end, adapting what was said in Jones v Dunkel (at 305), my conclusion after considering all the evidence is that the facts proved on the balance of probabilities fall short of a reasonable basis for a definite conclusion, affirmatively drawn, that Mr David did not decide to outsource the ground operations partly to prevent the exercise by the affected employees of their workplace right to organise and engage in protected industrial action and participate in bargaining in 2021. Or, to put it another way, it may be that a substantial and operative reason for Mr David making the outsourcing decision was not the Relevant Prohibited Reason, but by reference to all the evidence, I am not reasonably satisfied on the preponderance of probabilities that this fact has been proved by Qantas. In these circumstances, and in this respect, Qantas has not discharged its onus. In reaching this conclusion I have been conscious of the nature of this finding of contravening conduct and of its consequences.

150    While those two paragraphs are undoubtedly important, they need to be read in the context of the rest of liability judgment, and in particular [283] to [302].

151    Qantas’ overarching argument in support of this ground is that there was a compelling inference that should have been drawn from the evidence and findings of the primary judge that none of Mr David’s substantial and operative reasons for making the outsourcing decision were proscribed. The thrust of ground 2 is therefore an assertion that the primary judge ought to have made a positive exculpatory finding, of the kind required by s 361(1), that Mr David did not make the outsourcing decision to prevent the exercise of the workplace right described in the declaration, best understood as taking objection to his Honour not being satisfied, on the evidence of Mr David in the context of the rest of this evidence, that this reason formed no part of the substantial and operative reasons for making the outsourcing decision.

152    Ground 2 therefore challenges the primary judge’s reasoning and conclusion on the failure to discharge the onus cast on Qantas Airways by s 361(1) to rebut the presumption established by that provision that adverse action was taken for an identified proscribed reason or with an identified proscribed intention. It asserts that his Honour should, by reason of the five circumstances particularised in ground 2 and reproduced above, have been satisfied that Mr David had proved that the action taken in making the outsourcing decision on behalf of Qantas Airways, which was admitted to be adverse, was not taken for reasons that included any proscribed reason or proscribed intention. In context, this entails an assertion of error in failing to find that the outsourcing decision was made only for the reasons expressly given by Mr David, being the three commercial imperatives.

153    The TWU’s response is that the submissions advanced by Qantas mischaracterise the primary judge’s conclusions in relation to Mr David, disregard the conventional application of s 361(1) requiring affirmative proof that none of the substantial and operative reasons for making the outsourcing decision included the proscribed reasons alleged, and overlook the conclusion reached being based in part upon the impression of Mr David’s evidence and therefore his credit.

154    Qantas first relies upon the primary judge’s liability judgment reasons at [4], [139], [194] and [272(1)] in relation to the three commercial imperatives as constituting findings that should have led to his Honour finding that the s 361(1) onus had been discharged, also asserting that the reasons for not doing so were not adequately explained and there that had not been any explicit finding rejecting Mr David’s evidence. However, the arguments advanced by Qantas relying upon those paragraphs entail a misreading of them, or of their effect. Each paragraph needs to be considered in turn.

155    At LJ [4], the primary judge summarised Qantas’ case, but contrary to the argument advanced, this did not reflect any factual finding by his Honour. It follows that LJ [4] does not support Qantas’ argument.

156    At LJ [139], the primary judge observed, in one phrase in a lengthy and detailed paragraph, that “provided it was open to do so, Mr Jones, Mr David and Mr Hughes wanted to outsource ground operations because they believed it was best for the bottom-line”. Qantas relies upon this phrase as, in substance, constituting an unqualified acceptance of Mr David’s evidence. However, that is neither accurate, nor contextually correct. This phrase was part of his Honour’s reasons focussing on the benefit side of the decision-making equation. This is best understood by putting that phrase in the context of the rest of the sentence in which it appears and in the preceding sentence, with that phrase emphasised (emphasis added):

This involved the not unfamiliar exercise of weighing risk and reward. Understandably, they sought and obtained expert advice about those industrial and legal risks so those risks could eventually be properly weighed in the balance against the estimated rewards. Obviously enough this is consistent with the ultimate decision being the one which best facilitated the so-called three imperatives, but it can be put more simply: provided it was open to do so, Mr Jones, Mr David and Mr Hughes wanted to outsource ground operations because they believed it was best for the bottom-line.

157    There is no suggestion by his Honour that he was satisfied that Mr David had proved that those imperatives constituted the exclusive basis for the making the outsourcing decision. His Honour expressly said that he was not so satisfied, giving numerous reasons for reaching that conclusion, as developed in part further below. It follows that the phrase in LJ [139] relied upon does not support Qantas’ argument.

158    At LJ [194], the primary judge found that:

(a)    he was satisfied that Mr David’s evidence as to his reasons in August 2020 for embarking upon the outsourcing proposal, being the three commercial imperatives, were the same reasons given by him for later making the outsourcing decision;

(b)    those reasons were expressed at a level of generality and his Honour was not satisfied that Mr David was not subjectively conscious of other considerations that were not inconsistent with those three commercial imperatives; and

(c)    despite Mr David rejecting the proposition that his reason for the outsourcing decision was to avoid Qantas Airways being in a position where it needed to bargain with and negotiate with the TWU in the future and to prevent employees disrupting services in the future by taking PIA, his Honour had reservations about those denials reflecting his subjective views at the time, being in substance a doubt as to reliability in the sense of the completeness of Mr David’s recollection on this topic, and therefore a type of credit finding,

such that this fell short of being, as Qantas would have it, an unqualified acceptance of Mr David’s evidence, from which an exculpatory inference as to the discharge of the onus in s 361(1) not just could have been drawn, but had to be drawn. It follows that LJ [194] does not support Qantas’ argument.

159    At LJ [272(1)], the primary judge repeated in a summary form the conclusion at LJ [194], summarised above, again falling short of being any unqualified acceptance of Mr David’s evidence so as to compel an inference that no proscribed reason was operative and substantive. Properly understood, LJ [272(1)] does not support Qantas’ argument either.

160    The acceptance by the primary judge of Mr David’s evidence was expressly limited, qualified and confined. It was essentially accepted as to the positive reasons for the outsourcing decision, but not in denying the proscribed reason directed to discharging the s 361(1) onus. It was also overtly not accepted by his Honour in a number of important respects leading or contributing to that denial not being accepted. His Honour had clearly expressed serious reservations as to aspects of Mr David’s evidence by reason of not being satisfied that that it was reliable, in the sense of being a complete account of the reasons for the outsourcing decision, including in certain respects lacking credibility.

161    The primary judge’s assessment was concerned not just with the content and context of the evidence, but the way in which it was given in cross-examination and the inability to assess the parts given by affidavit except by comparison with the rest of the evidence. It requires more than a mere identification of alternative conclusions and taking issue with aspects his Honour’s reasoning to impugn that lack of satisfaction being reached. That is especially so when such an involved assessment of evidence takes place, which includes features for which his Honour had advantages not enjoyed by an appeal court. It follows that Qantas’ submission that these paragraphs of the primary judge’s liability reasons should, of themselves, have led to the inferential conclusion that the onus in s 361(1) had been discharged cannot be accepted.

162    The theme advanced by Qantas of the primary judge having accepted Mr David’s evidence so as to compel an inferential conclusion that the onus in s 361(1) had been discharged is further developed by reference to other positive comments made the primary judge about aspects of Mr David’s evidence. Reliance is placed by Qantas upon his Honour, at LJ [88], rejecting a TWU submission that Mr David deliberately attempted to mislead the Court in all material respects, instead finding that “aspects” of his evidence had a crystal-clear ring of truth. In context, this was not the ringing endorsement of every other aspect of Mr David’s evidence that Qantas seems to suggest. Rather, in context, it was a further reflection of his Honour’s acceptance of Mr David’s evidence as to the importance of the three commercial imperatives in making the outsourcing decision. However, his Honour was, for clearly expressed and cogent reasons, not satisfied that this evidence was sufficiently comprehensive in its effect to discharge the onus under s 361(1) of excluding any other substantial and operative reason, relevantly one of the proscribed reasons as substantially pleaded in the final version of the statement of claim at [44A], and as ultimately reflected in the declaration made by his Honour. Properly appreciating the burden of the assessment of Mr David’s evidence in this way substantially undermines its capacity to compel the drawing of inferences in favour of the discharge of the onus in s 361(1), as urged by Qantas. That observation also applies to the following paragraphs of his Honour’s liability judgment relied upon by Qantas.

163    Reliance is placed by Qantas upon the primary judge, at LJ [90], describing Mr David’s evidence as being more realistic than others in relation to the options facing Qantas Airways in meeting its commercial objectives. Qantas submits that this was only doubted to a minor extent. But that does not do justice to his Honour’s reasoning on this topic. His Honour also said that this positive conclusion did not mean that in all respects Mr David’s evidence was entirely satisfactory, giving an illustrative example of difficulty in accepting Mr David’s assertion in cross-examination that he did not hold any belief or view as to whether union membership at Qantas Airways or a QGS was closer to 1% or 99%, or that he needed assistance in understanding the meaning of the word “influential” in the context of a question asked of him about the TWU in relation to its influence on the Qantas workforce.

164    Qantas’ written submissions express surprise at primary judge’s expressed difficulty in accepting Mr David’s evidence of a professed absence of any view or belief about the level of union membership, but it is not at all hard to understand his Honour’s stance. It was entirely open to his Honour to be sceptical about such evidence, which was in substance to the effect that the level of union membership was not important enough for a company like Qantas Airways, and thus to one of its most senior executives, for any view or belief to be held about it. Such a stance can fairly be said to beggar belief, and was fairly capable of casting a shadow over the balance of Mr David’s evidence. It was also fairly open to his Honour to take a dim view of the evasive answers given by Mr David on the question of the influence of the TWU. The primary judge expressly regarded this as going to credibility, because his Honour indicated that he would return to that topic when it came to making ultimate findings below. That was orthodox reasoning entirely open to his Honour.

165    This is of some importance, because the primary judge was clearly concerned about the completeness of Mr David’s account of events, in terms of reliability, rather than honesty per se, or other measures of truthfulness. It is well known by experienced judicial and other fact-finders that overall doubts about some aspect of credibility or reliability may be found in a revealing aside or collateral point that casts doubt on unquestioning acceptance of all aspects of, or the completeness or reliability of other more central evidence that is not directly shaken. Moreover, the question of the level of union membership, and the influence of the TWU on the Qantas Airways and QGS workforce, was hardly peripheral to the risk of industrial action taking place, to which the pleaded proscribed reason was alleged to be directed, but rather of obvious relevance to that risk and thus to that asserted reason. In those circumstances, his Honour was entitled to regard such evidence in that context as casting doubt on Mr David’s evidence in disavowing any proscribed reason for the outsourcing decision.

166    The force of the preceding observations is reinforced when regard is had to the primary judge’s overt scepticism at LJ [300] about aspects of Mr David’s oral evidence in cross-examination, having also expressed concern about his evidence in chief being in the written form of an affidavit rather than viva voce. His Honour’s observations about that oral evidence included conventional and orthodox observations about Mr David’s wariness about making concessions adverse to Qantas Airways’ interest, and his keenness to highlight in a non-responsive way aspects of his evidence that he was not motivated by a proscribed reason in making the outsourcing decision. His Honour (at LJ [300]) quoted CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94] per McKerracher, Robertson and Lee JJ to explain and highlight the longstanding and well-accepted proposition that a tribunal of fact is not necessarily faced with an all or nothing situation with the evidence of a witness, and needs to decide what to accept and what to reject, in whole or in part. Candour in one respect does not preclude doubt in another. This reinforced the reasons discussed above about his Honour’s concern as to the completeness and therefore reliability of the account given by Mr David, without going so far as to find this to be a basis to question his honesty. It is more common for a witness to be found to be unreliable in some particular respect than untruthful, but this still remains an aspect of fact-finding not readily susceptible to appellate correction unless error is clear in some respect. No such error in the assessment of Mr David’s evidence is apparent in this case.

167    It is also noteworthy that, as pointed out by the TWU, two of the factors identified by the primary judge for having doubts about Mr David’s evidence, and seized upon by Qantas as being inadequate to stand in the way of inferring that the presumption that arose under s 361(1) had been rebutted, were not the only reasons for the primary judge’s reservations. Other shortcomings arising from what his Honour regarded as a less-than-complete account being given by Mr David in the written or documentary evidence, which do not presently require elaboration, were identified by his Honour at LJ [84]-[85] and [290]-[296], as well as those at LJ [90]-[91] and [300] discussed above. These points serve to indicate that his Honour had ample reason not to accept the bare denial of any proscribed reason by Mr David as being sufficient to discharge the onus to rebut the presumption in s 361(1).

168    Qantas also attacks the primary judge’s reliance on the influence of Mr Jones’ views on Mr David in making the outsourcing decision, found to be motivated in part by reasons contrary to s 340(1)(b). This reliance is said to be wholly obscure and unjustified, and a number of other pejorative characterisations to like effect. Qantas asserts that greater reliance should have been placed on the way in which the documentary record leading up to the outsourcing decision was maintained and presented. At least implicit in this criticism is the suggestion that his Honour was not entitled to go much beyond form and have much regard to the practical context in which the outsourcing decision was being made, and the underlying reality of what was taking place, as established by the evidence. His Honour was entitled to have regard to the industrial relations context in which the decision was being made, especially as aspects of this topic were expressly set out in a document used to address a meeting that was read and approved of by Mr David prior to that meeting taking place: see LJ [127]-[128].

169    Mr Jones was, at the time of the outsourcing decision, the Chief Operating Officer of Qantas Airways. It was not in doubt that the primary judge was entitled to conclude that Mr Jones and also Mr Hughes, the executive responsible for the delivery of airport operations at the 10 airports in question, worked very closely with Mr David, as the reproduction of LJ [299] of his Honour’s reasons below demonstrates. His Honour had earlier observed at LJ [60]:

It is apparent that Mr Jones and Mr David worked closely together in their roles and there is no reason to doubt that they exchanged their views with one another in relation to matters they perceived to be important to the business of Qantas’ Australian Airports — it is more likely than not that they would have been candid with one another in relation to their views as to the options and recommendations for the business of Australian Airports discussed at GMC meetings.

170    In ground 4, Qantas challenges the significant adverse findings made about Mr Jones’s evidence, but assumes them to be correct for the purposes of ground 2. The argument advanced by Qantas required the primary judge, and this Court, to take what was advanced by Mr David at face value, rather than test and question that evidence as his Honour did.

171    Qantas wrongly attributes to the primary judge a sheeting home of Mr Jones’s state of mind to Mr David, and an equivalence being drawn between the state of mind of Mr Jones and Mr David. His Honour did not make any such finding. The presence of the presumption in s 361(1) meant that his Honour did not have to go that far. It was more than enough that Mr David having the same views on this topic as Mr Jones was shown to be reasonably possible, and that Qantas did not discharge the onus of excluding that possibility. As his Honour evocatively explained (at LJ [299]):

But even leaving aside any deficiencies in the affidavit evidence, an independent reason for my hesitation about reaching the necessary state of satisfaction with regard to the evidence of Mr David is that the case was expressly run by Qantas [Airways] on the basis that there was no difference between Mr Jones’ reasons for his involvement and that of Mr David. The affidavit evidence provided, for example, that Mr Hughes recommended to Mr David that he decided to outsource the ground operations (Hughes at [131]-[132] and [134]) and for those same reasons, Mr Jones agreed with and endorsed that recommendation (Jones at [66]-[75]); and for essentially the same reasons, Mr David made the outsourcing decision: David at [97]-[103]. Qantas [Airways]’ submissions did not suggest that there was a cigarette paper of difference between the motivations of each these men to the extent that they had an involvement. In particular, there is no evidence there was any difference between them in: (a) the way they thought about the differences in approach between above the wing and below the wing workforces; or (b) the risks and rewards of outsourcing. As I have recorded above, I am affirmatively satisfied that Mr Jones was motivated by the Relevant Prohibited Reason. The closeness of the working relationship between the two men gives me some pause in accepting that Mr David was differently motivated than Mr Jones.

172    Thus, while the primary judge did not make a positive finding that Mr David shared Mr Jones’ proscribed motivation and thus find that to be a proven reason of Mr David for the outsourcing decision independently of the s 361(1) presumption, his Honour found it difficult to accept that Mr David was differently motivated given the close working relationship between the two men. There is nothing obscure or unjustified about such an obvious circumstance contributing to a judge declining to reach a requisite state of satisfaction as to the discharge of an onus requiring, as a practical matter, such concerns to be set at nought, or at least not given any determinative weight.

173    Qantas also characterises the primary judge’s consideration of the possibilities as mere speculation, again expressed pejoratively. This characterisation fails to acknowledge the foundation for the reasonable possibility of a proscribed reason identified by his Honour in this case went well beyond speculation, although in a given case there may be nothing wrong with a measure of speculation applied to proven circumstances in order to explain why evidence excluding a proscribed reason has not been accepted. It also fails again to comprehend the proper operation of s 361(1). Once the TWU had pleaded a proscribed reason, consideration of whether that reason was consistent with that allegation, including by reason of the evidence before the Court, was to do no more than identify the circumstances in which consideration of the application of the presumption arose. In this case, as already noted, there was, among numerous other circumstances identified by his Honour, the combination of:

(a)    the evidence by and about Mr Jones;

(b)    the finding that Mr Jones’ motivation included the proscribed reason as pleaded; and

(c)    the finding (indeed the case at trial for Qantas Airways) that the two men worked closely together in the formation of the outsourcing decision, to require Qantas Airways at trial to exclude the reasonable possibility that Mr David also had the proscribed motivation and therefore a proscribed reason for making that decision. Contrary to Qantas’ submission that this was no more than a feeling on the part of his Honour, it was part of a carefully reasoned basis for having doubts that were not extinguished, leaving the presumption intact.

174    Contrary to an express submission by Qantas seeking to require s 140(2) of the Evidence Act 1995 (Cth) apply, the TWU did not have to prove, and the primary judge did not have to find, that there was in fact any common motivation between Mr David and Mr Jones. Once the proscribed reason was properly raised, including by the pleading and by the circumstances detailed by his Honour at LJ [299] reproduced above, that was more than enough to trigger the application of the presumption, such that Qantas Airways bore the onus of showing that Mr David did not have the pleaded proscribed reason for making the outsourcing decision in addition to the three commercial imperatives that were accepted to be reasons for that decision. It is immaterial that there may in fact have been differences between the views and thus the state of mind of Mr David and Mr Jones, and for that matter, of Mr Hughes, on this topic, because this is not a question of such proof by the TWU, but of rebuttal by Qantas Airways.

175    Qantas further submits that the primary judge did not identify how or why the proscribed reason was a substantial and operative reason for the outsourcing decision. There are several readily available responses to this submission.

176    First, the primary judge did not need to spell out, letter and verse, matters that were sufficiently self-evident. Given the risk posed to the making and later implementation of the outsourcing decision by PIA, a reason for making that decision directed to heading off that risk was self-evidently substantial and operative, not least because the timing of such a decision may legitimately be seen to be as important as its content.

177    Secondly, the onus was on Qantas to establish either that the reason did not exist at all, or that it was not substantial and operative. Qantas did not seriously, if at all, attempt the latter, given that its existence was denied, so did not prove that such a reason, if not excluded, was not substantial and operative. The primary judge did observe at LJ [283] that Qantas Airways did not have to go so far as to establish that the proscribed reason was entirely disassociated from the identified workplace right.

178    Thirdly, the primary judge (at LJ [251]) accepted that a factor may be taken into account without being a substantial or operative reason, but once such a factor or consideration has been identified, the inquiry involves questions of judgment and characterisation. His Honour concluded at LJ [302] that he was not reasonably satisfied that Qantas Airways had proved that a substantial and operative reason for making the outsourcing decision did not include the proscribed reason.

179    Qantas also takes issue with the fact-finding reasoning of the primary judge, asserting that as the outsourcing decision was characterised by his Honour as inevitable, the effect of the industrial considerations, to use an umbrella term, was difficult to conceive and would have been made even if PIA was not a risk, teasing through the reasons for conclusions supporting that characterisation. However, this argument is correctly characterised by the TWU as no more than a submission that different conclusions could have been reached, and without giving sufficient heed to the witness assessment that was engaged in by his Honour.

180    Qantas submits that the vanishing window of opportunity frequently referred to by the primary judge, which it says was due to the effective grounding of the fleet, meant that the outsourcing decision was only made for the three commercial imperatives. The TWU points out correctly, at least in part, that this window was vanishing because the Qantas Airways employees would have the capacity to take PIA from 1 January 2021, coupled with the anticipated increase in domestic flights, which would then have rendered industrial action efficacious, of itself making this a substantial and operative reason for the outsourcing decision. That counter submission should be accepted, especially in relation to timing.

181    The primary judge’s approach to the assessment of the overall credibility and reliability of Mr David’s evidence in being able successfully to exclude the contribution of a proscribed reason for the outsourcing decision, so as to discharge of an onus to displace a statutory presumption as to a proscribed state of mind, was a thorough and evocative, but otherwise legally unremarkable, exercise in evidence evaluation and assessment. It turned on a series of observations that were intertwined with his Honour’s capacity to observe Mr David, and for that matter, Mr Jones, giving evidence. It included a conventional credit evaluation exercise.

182    The primary judge did not rely only upon evanescent demeanour or the like as any kind of shield against appellate scrutiny, but rather framed what was said, and how it was said, by way of the inter-relationship between disparate aspects of the evidence and its context. It is a character, credit and reliability assessment of a kind that, when done properly and thoroughly as in this case, is very difficult for an appeal court to gainsay: see Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [45]-[51] per Perram J. Qantas has not made any serious attempt to demonstrate any actual error in his Honour’s assessment of the deficiencies in Mr David’s evidence in discharging the s 361(1) onus, relying instead upon the inference supporting weight of what was accepted by his Honour to assert that a different conclusion had to be reached, and seeking to trivialise the shortcomings his Honour identified. This falls well short of establishing any appealable error.

183    While the primary judge did not reject Mr David’s evidence as to his positive reasons for making the outsourcing decision, namely the three commercial imperatives, this was clearly not accepted as going far enough to satisfy his Honour that the substantial and operative reasons were confined to those considerations. That conclusion is not infected with error. Ground 2 must therefore fail.

Ground 3

184    Ground 3 asserts that even if the primary judge did not err in relation to the fact-finding aspect of the discharge of the s 361(1) onus (that is, if ground 2 does not succeed), nonetheless the product of that fact-finding was misused by his Honour confusing a cause (or effect) with a reason. Qantas asserts that even if the outsourcing decision was made to avoid operational disruption or operational continuity risk in 2021, the primary judge wrongly equated the outsourcing decision as a potential cause of preventing the exercise of the workplace right described in the declaration, with any reasons or intent for making that decision, again better understood as taking objection to treating a collateral cause or benefit of the outsourcing decision as being a substantial and operative reason for making that decision.

185    This ground revisits the topic considered above in relation to ground 2 of the distinction between a mere factor or consideration, and a substantial and operative reason. Qantas’ complaint is that the primary judge did not engage with the authorities relied upon of Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; 112 FCR 232 (Full Court), at [163]-[167] per Merkel J and at [199], [204], [209] and [216] per Finkelstein J, and Maritime Union of Australia v CSL Australia Pty Ltd [2002] FCA 513; 113 IR 326 at [54]-[55] per Branson J. Those passages identify and address a sometimes difficult distinction required to be drawn between the operative or immediate reason for the conduct in question, and the mere cause or proximate reason for that conduct. Qantas asserts that his Honour did not engage with the argument advanced in reliance upon that distinction, and that there had to be more to make it a reason for acting, let alone a proscribed reason.

186    The suggestion that the primary judge did not appreciate the distinction between mere cause or effect on the one hand, and a proscribed reason for making the decision on the other, cannot be accepted. As noted above, his Honour at LJ [251] addressed not just the distinction, describing it as common sense drawn from ordinary human experience, but cautioned against too close a focus on abstractions and categorisations, rather than the necessary process of characterisation and assessment. His Honour, having appreciated the distinction, did not fail to pay heed to it.

187    The primary judge found that Mr Jones believed that outsourcing should be pursued in 2020 to avoid having to bargain with the TWU and its members, that this was a substantial and operative reason for recommending outsourcing to avoid this risk when both enterprise agreements were past their nominal expiry date and industrial power would be more likely to be on the rise, and the overall risk assessment of the implementation favoured taking advantage of the opportunity that presented itself: see LJ [104], [109] and [274]. As noted above, his Honour did not accept that any material distinction had been proven between the views of Mr Jones and Mr David, in part leading to the conclusion that the presumption had not been rebutted. Further, at LJ [281], his Honour again acknowledged the distinction between cause and reason, but considered that the fact that the risk of industrial action was identified and discussed was rationally relevant as part of the assessment as to whether Qantas Airways had established that the prevention of that risk eventuating, being the risk of the workplace right being exercised in the future, was a reason why the outsourcing decision was made in November 2020.

188    If all of the foregoing was not enough, the primary judge expressly revisited this issue in the declaration judgment at [14]-[16] in the course of explaining the final form of the declaration by reference to the scope of the word “prevent”. His Honour rejected the proposition that the asserted proscribed reason did not rise above mere concern with either the logical ramifications or consequences of PIA as a disruption to operational continuity. His Honour was comfortably satisfied that what mattered to Mr Jones (and thus not excluded as a reason also on the part of Mr David) was the prospect of Qantas Airways having to deal, in 2021, with the actual exercise of the TWU and the employees covered by the enterprise agreements of the identified workplace rights.

189    The submission by Qantas that the correct characterisation of the implementation risk was that it was no more than considered and was not a reason in and of itself, apart from raising again the false dichotomy identified above, cannot be accepted. The primary judge plainly considered the distinction and found that the proscribed reason crossed the line of being more than a mere contributing cause or consideration.

190    Ground 3 must fail.

Ground 4 and the TWU notice of contention: The influence of Mr Jones and Mr Hughes on Mr David

191    Qantas appeal ground 4 asserts that the primary judge erred at LJ [287] in finding that a substantial and operative reason for Mr Jones’ decision to endorse the recommendation to Mr David made by Mr Hughes in favour of making the outsourcing decision was to prevent affected employees from exercising their workplace right to organise and engage in PIA and participate in enterprise agreement bargaining in 2021.

192    The TWU seeks to rely on a notice of contention only if grounds 2 or 3 of the Qantas appeal succeed and this Court is satisfied that the primary judge erred in concluding that Qantas Airways had not discharged the onus imposed by s 361(1) to establish that none of the substantial and operative reasons Mr David had for making the outsourcing decision included the identified proscribed reason. The TWU in substance asserts that the outsourcing decision made by Mr David was directly infected by both the recommendation by Mr Hughes that the outsourcing decision be made and the endorsement of that recommendation by Mr Jones, each of them having the identified proscribed reason, so as to form part of the reasons for the outsourcing decision. The notice of contention is relevant if ground 4 succeeds, because it traverses the same general territory.

193    In substance, Qantas asserts by ground 4 that the primary judge went too far, while the TWU asserts by its notice of contention that his Honour did not go far enough. For that reason alone, it is convenient to consider ground 4 and the TWU notice of contention together.

194    The liability judgment at LJ [287] does not in terms contain a finding about Mr Jones that his reasons for endorsing Mr Hughes’ recommendation to Mr David to make the outsourcing decision, but rather an indication that such a finding would have been made if that was the issue being addressed. However, the primary judge earlier at LJ [201]-[202] said that he was satisfied that Mr Jones “perceived a need for the outsourcing decision to be made prior to Qantas [Airways] being presented with the prospect that the inevitable industrial backlash caused [by the outsourcing decision once made] could have, as part of its response, protected industrial action” and that this factor “was part of Mr Jones’ reasoning processes in making his assessment of the two remaining options and his endorsement of the recommendation to Mr David”, although his Honour was “less certain” about the subjective decision-making processes of Mr David. It was this last equivocal conclusion about Mr David’s reasons for making the outsourcing decision that most clearly identified what gave rise to the application of the presumption in s 361(1).

195    Further, at LJ [272], the primary judge said that aspects of the argument advanced by Qantas Airways were inconsistent with findings earlier made, in particular that:

(1)    Mr David’s reasons for making the outsourcing decision were the same reasons he had in August for embarking upon the outsourcing proposal, which were substantially the so-called three imperatives but that this did not mean that Mr David was not subjectively conscious of other considerations, not inconsistent with the three imperatives;

(2)    I am affirmatively satisfied that part of Mr Jones’ reasons for recommendation to Mr David to make the outsourcing decision was to prevent affected employees disrupting services in 2021 by taking protected industrial action when, it was hoped, services might be getting back to usual; the key concern of all within the Australian Airports business in making the outsourcing decision at the time that it was made was because of the vanishing window of opportunity caused by the operational disruption. Further, in relation to Mr Jones, I am satisfied that the existence of the open Enterprise Agreements was a consideration; and

(3)    I am not satisfied there was any difference between Mr David and Messrs Jones and Hughes in the way they thought about the proposed differences in approach between above the wing and below the wing workforces or any different views as to the risks and rewards of outsourcing.

196    Further, the primary judge, in reaching the conclusion that the TWU’s main s 340(1)(b) case succeeded, said:

[304]    As noted above (see [237]–[239]) Qantas [Airways] did not contest that it was not only Mr David, but also “the recommenders of the decision”, who are the focus of the inquiry. The evidence supports the conclusion that Mr Jones endorsed the recommendation of Mr Hughes and a substantial reason for him doing so was the Relevant Prohibited Reason. Despite it being uncontroversial that Mr David relied upon the recommendation which had been endorsed by Mr Jones, it is unnecessary for me to base my ultimate determination on the notion that Mr Jones, as a person who was involved in the process leading to the decision, can be regarded as a decision maker for the purpose of a proscribed purpose: cf Red Cross Society (at 348 [91]). By reason of the matters explained above (at [226]–[233]), this raises issues of some complexity and it is unnecessary to form a view as to the precise metes and bounds of the concept of material involvement relied upon by the Union to resolve this controversy. It is well in this case to focus on a causal inquiry into the reasons of Mr David at the time the adverse action was taken, and whether Qantas has proved what it needs to prove in relation to Mr David’s reasons (taking into account the whole of the evidence including the relevance of the motivations to Mr David’s decision making of Mr Jones, who worked so closely with him).

[305]    For completeness, it is worth noting that it seems to me more likely than not that Mr Hughes was motivated by the Relevant Prohibited Reason in the same way as Mr Jones given the nature of their working relationship, the communications between them, and the fact that there was no suggestion that there was any difference between their views as to the risks, rewards and proposed reasons for outsourcing. Having said this, I have not considered myself quite so convinced as to the subjective motivation of Mr Hughes as that of Mr Jones.

197    Thus, the primary judge did not consider it necessary to base the ultimate conclusion of a contravention of s 340(1)(b) upon Mr Jones having infected the outsourcing decision with a proscribed reason, or otherwise being in any sense a decision-maker having such a reason, having earlier noted the complexity of the law in relation to the relevance and application of a proscribed reason being held by a material contributor to an impugned decision. His Honour’s reference above to Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332 warrants repeating what was said in that case in order to better understand what his Honour was saying, having earlier (at LJ [206] to [239]) considered that and other cases in some detail. Greenwood, Besanko and Rangiah JJ in Australian Red Cross said:

[90]    The decision of this Court in Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 (Kodak) that the absence of a proscribed purpose in the mind of a decision-maker who adopts as his or her starting point the results of an assessment and ranking of an employee by reference to certain criteria performed by others does not foreclose the issue of purpose and a proscribed purpose may still be found where such was the purpose of a person who makes an indispensable contribution to the rankings. Kodak was followed by Reeves J in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166 who (at [121]-[122]) spoke in terms of a person whose reasons had a material effect on the ultimate decision or outcome.

[91]    We accept that a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a proscribed purpose, but we do not need to formulate a precise test for the purpose of this case and consider it prudent to refrain from doing so.

198    It can be seen from LJ [272(2)] reproduced above that while the primary judge made a clear affirmative finding that Mr Jones was in fact motivated by the identified proscribed reason, apparently not relying upon s 361(1) in reaching that conclusion, in the context of having earlier (at LJ [195]) also expressly rejected Mr Jones’ denial of having that as a reason for endorsing Mr Hughes’ recommendation to Mr David, his Honour deliberately did not make a finding in those express terms in relation to Mr Hughes. Given that his Honour made stronger and clearer adverse findings against Mr Jones, and was less clear in relation to Mr Hughes, it is apposite to observe that if the TWU’s notice of contention argument does not succeed in relation to Mr Jones, as a practical matter it cannot succeed in relation to Mr Hughes; and if the TWU’s argument does succeed in relation to Mr Jones, it does not need to succeed in relation to Mr Hughes.

199    On the case advanced by Qantas Airways, Mr David was the only person who relevantly had the power to make the outsourcing decision. His Honour found that Mr David in fact made that outsourcing decision himself, rejecting the TWU’s argument that there were other effective decision-makers such as the GMC, and others whose reasons should be imputed in some way to the decision, as part of its positive case as to there being a proscribed reason among the reasons for making of that decision. That included declining to impute the proscribed reason found to be held by Mr Jones and possibly found to be held by Mr Hughes to the outsourcing decision made by Mr David (as opposed to imputing it to Mr David), as the TWU notice of contention contends his Honour should have on the factual findings that were made as identified in the notice of contention.

200    On the evidence relied upon by Qantas Airways, Mr David did not have the power to implement that decision because he did not have the financial delegation necessary to sign the outsourcing contracts, so as to implement the outsourcing decision, giving rise to the asserted need for the power of attorney to be granted by Mr Joyce. It was not necessary for his Honour to decide whether or not that power of attorney was either legally effective or necessary, noting that his Honour found that, as it transpired, Mr David did not in fact exercise that bestowed implementation power.

201    The primary judge observed (at LJ [233]) that while the issue of the effect of the reasons of persons other than the decision-maker on the decision that is made was not without difficulty (following the prior discussion of key authorities on that topic by his Honour), it may be “artificial to maintain any bright-line distinction” between the decision-maker’s reasons, and contextual influences that might bear on it, being a fact-dependent analysis. That observation reflects the fact that his Honour did not consider it necessary to reach any concluded view about the scope of Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251, accepted in Australian Red Cross to be correct. In part it seems this was because of the factual findings his Honour was able to make without recourse to such reasoning, aided by the presumption in s 361(1) as applied to those findings. His Honour was also evidently concerned about the limitations in bringing a decision within the parameters of Kodak-like reasoning: see LJ [235].

202    On the question of the onus imposed by s 361(1), it was enough for the primary judge that there was a sound basis for a substantial and operative proscribed reason for the outsourcing decision to have been present, by reason, inter alia, of the influence that Mr Jones could, on all the evidence, have had on, or contributed to, the actual reasons held by Mr David as the decision-maker. Upon this point being reached, Qantas Airways then bore the onus to displace this as being a substantial and operative reason for the outsourcing decision actually held by Mr David, not just by Mr Jones. This did not entail any Kodak-type reasoning per se, in the sense of attributing a reason found only to be held by Mr Jones as one infecting the decision made by Mr David. His Honour’s decision in relation to s 361(1) can properly be understood as:

(a)    finding that Mr Jones had the proscribed reason in endorsing Mr Hughes’s recommendation;

(b)    finding it was likely, without deciding, that Mr Hughes also had that reason for making that recommendation;

(c)    falling short of finding positively that Mr David had that reason for making the outsourcing decision; but

(d)    not being satisfied that Mr David himself did not have that as a substantial and operative reason for making the outsourcing decision, such that the onus to displace the presumption that he did have that reason for making the outsourcing decision was not discharged.

203    That set of conclusions does not satisfy either side in relation to the influence on Mr David’s decision of the reasons of others involved in the decision-making process, especially Mr Jones. Qantas asserts error by the primary judge in going too far along that path in finding any contribution even in the context of assisting the conclusion that the presumption in s 361(1) was triggered and the onus in displacing it was not discharged. The TWU asserts error by his Honour in not going far enough in not going beyond the presumption and making an independent and positive finding to that effect, or perhaps in having a stronger basis for finding that the s 361(1) onus had not been discharged.

Ground 4

204    The possible application of Kodak-type reasoning only applies to the TWU notice of contention, and not to Qantas appeal ground 4. It is therefore convenient to turn first to ground 4.

205    Qantas contends that the primary judge erred in finding that a reason for Mr Jones’ endorsement of Mr Hughes’s recommendation was the identified proscribed reason. First, Qantas submits that the primary judge rejected Mr Jones’ evidence about the Voice-over annotation, “Voice-over labour Gov Lockin benefits + open EBAs 2020 DEC”, because of his demeanour, finding, it is said without explanation, that Mr Jones’ professed lack of recollection to be disingenuous and that he had fashioned his evidence to suit Qantas Airways, thereby concluding that it was not safe to place reliance upon his evidence. Qantas states that it takes issue with the correctness of those findings, but does not properly identify any error. It does not even attempt to characterise those finding as, for example, glaringly improbable or contrary to compelling inferences, in order to overcome the advantages of the primary judge in observing the evidence being given: Fox v Percy [2003] HCA 22; 214 CLR 118 at [29] per Gleeson CJ, Gummow and Kirby JJ; see also Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [45]-[51] per Perram J.

206    Qantas’ complaint does not survive scrutiny when the primary judge’s reasons are carefully considered, especially at LJ [59]-[69], but also at the points at which the content of Mr Jones’s evidence is considered when making narrative findings. While it is correct to say that the general conclusions reached relied upon demeanour, they were not confined to that alone and in isolation. His Honour plainly and expressly (at LJ [66]) had regard to the exhortation in Fox v Percy at [31] that judges “limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”. His Honour was overtly alive to the reference in that paragraph of Fox v Percy to the qualified ability of judges to make accurate credibility findings based upon demeanour alone. As noted in the course of considering grounds 2 and 3, his Honour did not rely upon mere evanescent demeanour alone, narrowly based. Rather, it was an assessment conducted by reference to a combination of the manner, content and context of that oral evidence, informed by all the evidence.

207    The primary judge reproduced a substantial portion of the transcript of Mr Jones’s evidence in cross-examination, emphasising key portions and explaining the tensions in that evidence. His Honour identified the contradiction in Mr Jones saying he could not remember what was in his mind at the time of making the annotations, while at the same time rejecting propositions readily able to be drawn from the face of them. It was with that foundation first in place that his Honour stated, additionally, that the transcript failed to convey Mr Jones’s visible discomfort in giving that evidence. This in turn led to the conclusion, based on observations made and the foregoing, that Mr Jones was feigning a lack of recollection about what was in his mind when making the annotations, and also pretending a lack of recollection of what was discussed at the meeting when making the annotations. In support of that conclusion, his Honour contrasted that aspect of Mr Jones’ evidence about “far from distant or unimportant events” with his detailed evidence in chief about other matters that were all consistent with Qantas Airways’ case, giving specific examples of evidence about certain meetings, discussions, details and reasoning processes.

208    Qantas made no real attempt to identify any error in any of the primary judge’s reasoning about the credibility of Mr Jones’s evidence. In those circumstances the attempt to impeach that reasoning cannot succeed.

209    Qantas next asserts that even if the conclusions about Mr Jones’ credit were correctly reached (more accurately, not demonstrated to be erroneous), the primary judge still “needed” to make factual findings capable of supporting the conclusion that Mr Jones was motivated by the identified proscribed reason, asserting that the findings made were confined to a desire to prevent operational disruption and that his Honour did not explain why a mere desire to prevent this was equivalent to having the identified proscribed reason. It is not apparent why this “needed” to take place. It is a straw person argument, setting a standard that did not have to be met, especially given that his Honour did not apply Kodak-style reasoning to find that Mr Jones’s state of mind infected the outsourcing decision. His Honour went no further than to find that Mr Jones’ state of mind contributed, but not in an indispensable way, to the identified proscribed reason being in play in the decision-making process so as to possibly be one of the substantial and operative reasons for the outsourcing decision. This and a range of other evidence considered by his Honour provided an ample basis for the presumption in s 361(1) to apply. It was then for Qantas Airways to discharge the onus of excluding that as such reason.

210    In any event, it is clear that the primary judge did in fact go further than finding that Mr Jones had no more than a desire to prevent disruption to services and did expressly find that one of his reasons for endorsing Mr Hughes’ recommendation to make the outsourcing decision included, or was close to, the identified proscribed reason. Much of his Honour’s reasoning has been summarised in the earlier part of these reasons, but closer consideration of a few key paragraphs demonstrates that this asserted limitation in the findings made do not withstand scrutiny.

211    At LJ [103], the primary judge rejected Mr Jones’ evidence that he did not recall what was in his mind when he made the Voice-over annotation and did not accept that he could not recall what was later discussed at the GMC meeting relevant to that annotation, finding it much more probable than not that a representation to that effect was made by him to the GMC. His Honour found that irrespective of what precisely was conveyed to the GMC by Mr Jones, that annotation was meant to relate to part of a presentation to the GMC dealing with why the available options were different for “above the wing” customer services as against “below the wing” ground services. His Honour accepted that the annotation was a record of Mr Jones’ view that the option of outsourcing was superior given that the second of the two enterprise agreements would also be “open” after the end of December 2020.

212    The above reasoning led, at LJ [104], to his Honour finding that Mr Jones had a concern that any opportunity to obtain the financial benefits of outsourcing was limited for more than one reason, noting there was already operational disruption and looking ahead there was a risk that an incoming Labor government would constrain outsourcing. At LJ [104], his Honour was

… reasonably satisfied that Mr Jones believed that one reason for pursuing outsourcing in 2020 was to avoid Qantas [Airways] being in a position where it had to bargain with the Union and its members from December 2020 and face the prospect of industrial action – just when he then considered (regrettably over-optimistically) that flights might just be getting back to some degree of normality in 2021.

213    The primary judge, after giving at least three separate reasons (at LJ [106]-[108]) fortifying the above conclusions by reference to:

(a)    evidence from Mr Hughes confirming the Voice-over annotation was a reference to the impact of the Qantas Airways enterprise agreement also being open from the end of 2020 and that he had discussed this with Mr Jones;

(b)    another document demonstrating that Mr Jones was well aware that the Qantas Airways enterprise agreement being “open” from the end of December 2020 would concentrate power back in the TWU when domestic demand would be growing and Virgin Airlines was potentially on its feet, such that the longer an outsourcing decision was deferred the greater the risk; and

(c)    it being likely that Mr Jones considered it prudent to ensure that his views as reflected in this aspect of the Voice-over annotation were conveyed by a “voice over”, and that on balance this was an attempt to prevent his real views being recorded in a contemporaneous document likely to be preserved,

at LJ [109] said:

In any event, I am comfortably satisfied that Mr Jones considered at the time that in the absence of prompt action on outsourcing, there was a real risk the Union would exploit the opportunity afforded by both the [Qantas Airways] and QGS Agreements being past their nominal expiry date in 2021, and would then be able to exert industrial power which could cause significant disruption when growing domestic demand for air travel may have returned to more normal levels.

214    Further, the primary judge, in the course of making findings about the outsourcing decision, said:

[201]    … The operational disruption occasioned by the pandemic meant that the risk/reward analysis that had previously prevented outsourcing being considered a viable option became, for a limited period, viable. The existence of the open EBAs were clearly, at least in the mind of Mr Jones, a further factor. Mr Jones perceived a need for the outsourcing decision to be made prior to Qantas being presented with the prospect that the inevitable industrial backlash caused could have, as part of its response, protected industrial action.

[202]    In summary, although I am satisfied for reasons that I have explained that this factor was part of Mr Jones’ reasoning processes in making his assessment of the two remaining options and his endorsement of the recommendation to Mr David, I am less certain of the subjective decision making processes of the decision maker, Mr David. I will expand upon these findings, and consider their legal consequences, below.

215    In the course of considering Qantas Airways’ submissions on the main part of the TWU’s s 340(1)(b) case, and in two places giving reasons for the conclusions reached about that case, the primary judge summarised the prior findings made concerning the reasons for Mr Jones endorsing Mr Hughes’ recommendation to make that outsourcing decision as follows:

(a)    at LJ [272(2)] in considering the Qantas Airways submissions:

I am affirmatively satisfied that part of Mr Jones’ reasons for recommendation to Mr David to make the outsourcing decision was to prevent affected employees disrupting services in 2021 by taking protected industrial action when, it was hoped, services might be getting back to usual; the key concern of all within the Australian Airports business in making the outsourcing decision at the time that it was made was because of the vanishing window of opportunity caused by the operational disruption. Further, in relation to Mr Jones, I am satisfied that the existence of the open Enterprise Agreements was a consideration;

(b)    at the end of LJ [299] in summarising the prior finding made about Mr Jones:

As I have recorded above, I am affirmatively satisfied that Mr Jones was motivated by the Relevant Prohibited Reason. The closeness of the working relationship between the two men gives me some pause in accepting that Mr David was differently motivated than Mr Jones.

(c)    in the first part of LJ [304] in again summarising the prior finding made about Mr Jones:

As noted above (see [237]–[239]) Qantas [Airways] did not contest that it was not only Mr David, but also “the recommenders of the decision”, who are the focus of the inquiry. The evidence supports the conclusion that Mr Jones endorsed the recommendation of Mr Hughes and a substantial reason for him doing so was the Relevant Prohibited Reason. Despite it being uncontroversial that Mr David relied upon the recommendation which had been endorsed by Mr Jones, it is unnecessary for me to base my ultimate determination on the notion that Mr Jones, as a person who was involved in the process leading to the decision, can be regarded as a decision maker for the purpose of a proscribed purpose: cf Red Cross Society (at 348 [91]).

216    As noted above, the primary judge did not find either that Mr Jones was a decision-maker in relation to the outsourcing decision, nor that he had in fact infected that decision made by Mr David in the manner identified in Kodak, discussed in more detail below in considering the TWU notice of contention. While it is correct that his Honour identified repeatedly and at some length the evidence demonstrating Mr Jones’ concern about the risk of industrial disruption, as the above demonstrates, the reasoning did not stop there. The reasoning of his Honour précised above goes well beyond a finding, as Qantas would have it, that Mr Jones only “had a desire to prevent disruption to services caused by PIA when normal flight patterns were hoped to resume”. Moreover, his Honour rejected as unconvincing the evidence of Mr Jones that no part of his reasons for endorsing the recommendation that the outsourcing decision be made was to prevent employees from disrupting services in 2021 by taking PIA when it was hoped that services might be getting back to normal.

217    Once that conclusion was reached, along with the conclusion that there was no difference suggested in the views as to the risks and rewards of the outsourcing decision as between Messrs Hughes, Jones and David, it was for Qantas Airways to prove that this was not a substantial and operative reason for making the outsourcing decision. Qantas Airways failed to discharge that onus.

218    It follows that ground 4 must fail.

The TWU notice of contention

219    The TWU notice of contention depends upon application of the case law on the influence of a proscribed reason held by someone who has had a substantial influence on a decision-maker, and is said thereby to have infected that decision. There is an initial issue as to whether there is substance in the concern that Snaden J expressed in Wong v National Australia Bank Limited [2021] FCA 671 at [88], as considered by the primary judge but not resolved, about reconciling the Full Court decisions in Kodak and in Australian Red Cross with the High Court decisions in Barclay and in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243.

220    The primary judge (at LJ [225]) quoted his Honour’s prior summary of the Full Court decision in Kodak in Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098. It is convenient to reproduce that again, as follows:

[103]    … In Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251, the Full Court considered a situation where two supervisors assessed an employee for redundancy by reference to identified criteria. A third person, a general manager, then made the ultimate decision to terminate the employment of the employee. It was explained that if either of the supervisors’ assessments was influenced by a prohibited reason, that would have impugned the decision of the general manger, even though the prohibited reason had not been disclosed to him. In doing so, at 260 [37] the Court explained that one supervisor made “an indispensable contribution to the rankings” and both supervisors “co-operated in a joint assessment, with each giving an account of what influenced them individually”. If one supervisor “was influenced in giving a low mark by a prohibited reason, it can be assumed that if the ranking were done without having regard to that prohibited reason” then this would, inevitably, have, affected the ranking process, whatever the views of the other supervisor. Furthermore, whatever debate there might be about the extent of the general manager’s power or involvement in the decision, the manager’s evidence was that he took the supervisors’ assessment and worked from there. It followed that if the supervisors’ assessment was affected (or infected) by either supervisor holding an undisclosed prohibited reason, then the general manger “would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of” the general manager (at 260 [37]).

[104]    In dealing with the Full Court’s decision in Kodak, in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166, Reeves J observed (at 198 [121]) that:

… where the reasoning process is dispersed through an assessment process involving a number of persons…the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry…focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak…

(references omitted)

221    The burden of Kodak on this issue, as applied in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166 and accepted in Australian Red Cross, permits, in some circumstances, the use or application by a decision-maker of material infected by a proscribed reason held by someone else involved in the decision-making process in some material way to be taken into account, in order to find that the impugned decision was made for reasons that included that proscribed reason. But it is informative to have regard to the particular circumstances in which that took place in Kodak itself, rather than be treated as an abstract principle to be deployed without a proper fact-finding process.

222    As detailed further below, the primary judge adverted to, but did not adopt, Kodak-type reasoning, apparently because his Honour saw no need to do so and was alive to the potential difficulties in a much more complex factual scenario than presented in Kodak. Rather, the possible conscious awareness of the proscribed reason on the part of Mr David was part of his Honour’s reasoning in relation to the application of the presumption in s 361(1) and what his Honour found to be the failure of Qantas Airways to discharge the onus of displacing that as being a substantial and operative reason for the outsourcing decision itself. There was no additional step taken by his Honour of applying the proscribed reason found to be held by Mr Jones as being an actual part of, or actually infecting, either the outsourcing decision itself, or Mr David’s reasons for making that decision. The substance of the TWU notice of contention entails showing not just error on the part of his Honour, but precisely how the circumstances of this case, and in particular the influence of Mr Jones on the reasons for the outsourcing decision, fell within the ambit of Kodak-type reasoning.

223    It may be observed that Australian Red Cross was decided after both Barclay and BHP Coal, so both Kodak and Australian Red Cross can only be departed from if this Court finds the statement of principle in Kodak on this topic to be plainly wrong, which was not sought or argued for by Qantas. However, that does not mean that the underlying principle emerging from Kodak cannot be assessed with the reasoning in Barclay and BHP Coal being taken into account as a possible limiting factor. The extent to which either Barclay or BHP Coal limit or otherwise cast doubt on the correctness or application of the reasoning in Kodak at [37] is necessarily confined, given that in neither case was Kodak referred to at all by the High Court.

224    The only overt statement in Barclay that might be interpreted as being contrary to the reasoning on this topic in Kodak is confined to the judgment of Heydon J at [146] to the effect that the inquiry mandated by s 361(1) involves a search for the actual reason of the decision-maker, a view subsequently expressly endorsed by French CJ and Kiefel J in BHP Coal (at [7] and footnote 21). However even then, that was in the context of denying the legitimacy of a court searching for an unconscious proscribed reason for the employer to exclude, rather than a Kodak-type situation applying a proscribed reason found to be held by a material contributor to the decision-making process, and imputing that reason to the decision that was made.

225    There is some divergence between the two other judgments in Barclay of French CJ and Crennan J and of Gummow and Hayne JJ, at least in attempting to divine a stance relevant to Kodak-type reasoning being applied. French CJ and Crennan J, in rejecting the suggestion that no state of mind was required at all for the purposes of s 346, equally applicable to s 340, said that there was no warrant for treating the word “because” as “requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action”: at [43]-[44]. This seems to allow, or at least not prohibit, some role for an identified unconscious contributing reason influencing the decision-maker to be factored into the reasons for the decision itself.

226    Gummow and Hayne JJ in Barclay described the reference in the majority decision of the Full Court in that case to “unconscious reasoning” as presenting a paradox, going on to observe that the provision under consideration, s 346, in common with s 340, does not contain any reference to “objective” or “subjective” reasons, ultimately concluding that the focus of the inquiry was the reasons of the decision-maker at the time: at [124] and [126]. Those observations were made in the course of observing that in assessing the evidence led to discharge the onus in s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances. That appears to encompass taking into account the reasons held by other material contributors to the decision-making process as being part of what the employer had to exclude as forming part of the reasons for the impugned decision as the TWU asserts should have been found to have happened in this case.

227    Both the views of French CJ and Crennan J and those of Gummow and Hayne JJ in Barclay, as well as those of Heydon J, were expressed in the very different context of what was found to be an erroneous finding by the majority in the Full Court that the employer had failed to discharge the onus in s 361(1). Barclay was not a case of applying a proven reason of a significant or material contributor to the decision-making process, so as render the decision infected with a proscribed reason. The most that can be safely said of Barclay is that it should encourage caution in applying Kodak-type reasoning. The primary judge evidently decided to do so by not going anywhere near that far in the affirmative findings that his Honour made. Importantly, at no stage did his Honour make the error the High Court found was made at the Full Court stage in Barclay, or by the primary judge in BHP Coal, of finding that a proscribed unconscious reason, not otherwise shown to be held by anyone, had not been excluded as a substantial and operative reason for the impugned decision.

228    Properly considered, there is no necessary inconsistency between Kodak or Australian Red Cross on the one hand, and Barclay or BHP Coal on the other, with the High Court in the latter two cases dealing with a different issue pertaining to the acceptance of evidence adduced by an employer to discharge the onus in s 361(1). It remains, however, for the TWU to show that the primary judge erred in not applying Kodak-type reasoning to this case in relation to the proscribed reason found to be held by Mr Jones, and more equivocally by Mr Hughes.

229    In relation to the TWU notice of contention, this was a markedly different situation to that in Kodak. In that case, the important information that was provided to the decision-maker was, unbeknownst to him, influenced by the proscribed reason held by the indispensable contributors to the making of the impugned adverse action decision. As a practical matter, in Kodak the influence of the proscribed reason could not be extricated from the impugned decision. But care must be taken not to elevate the particular facts in one case establishing infection of a decision with a proscribed reason to the level of a test or threshold necessarily to be applied in another. Such an evaluative exercise does not readily lend itself to abstract tests or thresholds derived in that way from the particular facts and reasons in a prior case. In common with the Full Court in Australian Red Cross, we would not go so far as to designate any definitive test for the application of Kodak-type infection reasoning, and would not understand the primary judge to have been doing so.

230    It must be kept steadily in mind that what is required is a causal and thus factual inquiry into all of the substantial and operative reasons for a decision being made. It is necessarily fact and circumstance specific, potentially with a multitude of such reasons being in play. In the field of causation, the question of fact as to whether something is a cause (or may have been a cause so as to trigger the presumption in s 361(1)), is required to be ascertained “by reference to common sense and experience and one into which considerations of policy and value judgments necessarily enter”: see Minister for the Environment v Sharma [2022] FCAFC 35 per Allsop CJ at [305], citing March v E & M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 per Mason CJ (with whom Toohey J and Gaudron J agreed).

231    As noted above, the TWU notice of contention proceeds upon the basis that Qantas appeal grounds 2 or 3 succeed and this Court is satisfied that the primary judge erred in concluding that Qantas Airways had not discharged the onus imposed by s 361(1) to establish that none of the substantial and operative reasons Mr David had for making the outsourcing decision included the identified proscribed reason. That approach in this case should not be understood to confine the operation of s 361(1) to the mind of the decision-maker in other cases, as opposed to the reasons for the decision itself. Our analysis on the TWU notice of contention does not entail consideration of the operation of s 361(1) to the contribution by Mr Jones or Mr Hughes, because that was not the case advanced by the TWU in support of its notice of contention.

232    In properly understanding the TWU’s case on its notice of contention, it is important to remember that the contravention in s 340(1)(b) alleged and found proved with the assistance of the presumption in s 361(1) is that Qantas Airways took adverse action against the affected employees in order to prevent the exercise of the particular workplace rights, a causal inquiry. Necessarily that causal inquiry requires the ordinary onus being discharged by evidence led, rather than a presumption not being rebutted. That is, it relies upon a positive causal case having been established by the TWU, based both upon the state of mind of Mr Jones (or Mr Hughes or both men) including the identified proscribed reason, and the impact of having that reason on the outsourcing decision. The first part was found to exist by the primary judge in relation to Mr Jones, but not so clearly in relation to Mr Hughes.

233    The TWU’s notice of contention case is that the primary judge found that Mr Jones and (less clearly) Mr Hughes each had the identified proscribed reason, that Mr David relied upon the recommendation made by Mr Hughes to make the outsourcing decision and relied upon the endorsement of that recommendation by Mr Jones, and that the outsourcing decision was thereby infected with that proscribed reason, and was therefore made for a reason that included that proscribed reason. The high water mark of that causal case, as identified in the notice of contention, is LJ [304]-[305], reproduced above. It is convenient to reproduce again the key sentence in [304]:

Despite it being uncontroversial that Mr David relied upon the recommendation which had been endorsed by Mr Jones, it is unnecessary for me to base my ultimate determination on the notion that Mr Jones, as a person who was involved in the process leading to the decision, can be regarded as a decision maker for the purpose of a proscribed purpose: cf Red Cross Society (at 348 [91]).

234    The evidentiary source for the conclusion that Mr David “relied” upon the recommendation of Mr Hughes which had been endorsed by Mr Jones was a single question and answer in the course of the cross-examination of Mr David:

And in coming – or to the extent that you were involved in approving this decision –this recommendation from Mr – I should say, in signing this document, you were relying upon the recommendation of Mr Hughes and Mr Jones and information that they had provided to you?---Yes.

235    Contrary to the TWU submissions in reply, Qantas did not concede that Mr David relied upon the bare recommendation of Mr Hughes or the bare endorsement of that recommendation by Mr Jones, but rather submitted that he relied upon and took into account the content of that recommendation and that endorsement, being in substance the three commercial imperatives. In that context, there are number of problems with the TWU’s reliance on these confined findings based on this very limited evidence. First, the primary judge considered it unnecessary to base the ultimate determination on what amounts to Kodak-type reasoning. That means that no finding was made that the above evidence of Mr David proved the necessary infection by Mr Jones and even less so by Mr Hughes. His Honour’s reference at LJ [304] to his earlier reasons at LJ [237]-[239] included the submission by Qantas Airways about limiting such reasoning to the extent of the adoption of evaluative assessments by Mr David, and noting that the required analysis was a causal inquiry.

236    Secondly, the TWU does not advance anything more than the bare fact of reliance established by the single question and answer reproduced above, without any evidence as to the nature and extent of that reliance.

237    Thirdly, it is therefore left to this Court to determine whether that evidence goes far enough to establish infection on the balance of probabilities.

238    For the following reasons, it is not possible to be satisfied that the evidence and findings relied upon do go far enough to prove that the reasons of Mr Jones, and even less so the reasons of Mr Hughes, infected the outsourcing decision with those reasons. That is especially so given the serious nature of the contravention that would thereby be established, having regard to the quality of the evidence required by the statutory expression of the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 in s 140(2) of the Evidence Act 1995 (Cth).

239    The phrase in the question asked of Mr David “you were relying upon” is ambiguous. While it suggests influence, the extent of the influence is not clear and was not further explored. The evidence does not go so far as to establish that either the recommendation or the endorsement, without more, operated to infect that decision with a proscribed reason. It is a very different situation to Kodak where there can be no doubt that reliance on the recommendation was sufficiently influential to have made a material contribution on the particular facts and circumstances of that case.

240    The TWU has not demonstrated that any findings by the primary judge, or the evidence standing behind such findings, provided an alternative way to support the conclusion reached that the outsourcing decision was made for a reason that included the identified proscribed reason. Strictly speaking, given that Qantas has not succeeded overturning his Honour’s basis for finding the contravention of s 340(1)(b), it was not necessary to determine the TWU notice of contention, but in our view in all the circumstances it was desirable to do so.

241    It follows that the TWU notice of contention must fail.

Ground 5: The scope of the declaration in relation to non-union employees

242    By ground 5 of its appeal, Qantas alleges that the primary judge erred in concluding that it contravened s 340(1)(b) in respect of employees who were not union members. This ground is premised on Qantas not otherwise succeeding on its appeal. In other words, it is premised on an acceptance that the primary judge correctly held that Qantas Airways contravened s 340(1)(b) in respect of employees who were members of the TWU.

243    The issue as to whether a declaration of contravention of s 340(1)(b) should extend to non-union employees was the subject of the declaration judgment. At DJ [30] the primary judge determined that, by reason of the failure of Qantas Airways to discharge its onus, the declaration should extend to non-union employees.

244    Qantas contends that there was no evidence, nor any factual finding, to support a case that Qantas Airways took the outsourcing decision to prevent non-union employees engaging in bargaining, in a protected action ballot or PIA. Although Qantas accepted that the non-union employees could have appointed a bargaining representative and participated in a protection action ballot and PIA, it contended that there was no evidence that the non-union employees were at risk of participating in the enterprise agreement bargaining process or that Qantas Airways was trying to prevent bargaining with non-union employees or prevent their participation in a protected action ballot or PIA. Qantas contends that the primary judge was right to observe (at DJ [29]) that “the evident focus of everyone within Qantas as to industrial risk arising from any outsourcing decision was on the Union and the anticipated industrial response of its members”. On this basis Qantas contended that the notion that it took the outsourcing decision to prevent something which had no real likelihood of occurring was somewhat fanciful. It concluded its submission by contending that for the primary judge to say that in the circumstances Qantas had not discharged its onus was effectively to erect an inappropriate barrier against Qantas discharging the onus under s 361 and a misapplication of that provision.

245    We are not persuaded that the primary judge erred by finding that the contravention of s 340(1)(b) extended to non-union employees. There was no misapplication of s 361. The submissions made by Qantas are largely based on a misunderstanding of how that provision operates.

246    The operation of s 361 has already been addressed above. That discussion should be supplemented with a consideration of the authorities which have identified the two preconditions that must be met in order to engage s 361(1). The authorities were surveyed by Bromberg J in Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; 292 IR 396 at [37]-[38]:

[37]    First, as is stated by s 361(1)(a) itself, to engage the benefit of s 361, an applicant must make the allegation that “a person took, or is taking action for a particular reason or with a particular intent”: Celand v Sky City Adelaide Pty Ltd (2017) 256 FCR 306 at [147] (Bromberg J with whom Charlesworth J agreed at [167]); Australian Red Cross Society at [65] (Greenwood, Besanko and Rangiah JJ). In Hall (at [14]) the Full Court emphasised that the allegation “must precisely and distinctly identify the alleged reason or the alleged intent, for contravening conduct”. As discussed at [35], a contravention of ss 348 and 355 requires the respondent to have both a “particular intent” (an intent to negate choice) and a particular reason (for s 348, engagement in one or more of the industrial activities defined in s 347 and, for s 355, one or more of the matters addressed by paras (a)-(d) thereof). Both the particular intent and the particular reason will need to be precisely and distinctly conveyed in the allegation made: Hall [40]. In identifying the “particular intent” an applicant must, by the allegation made, “convey the relevant particular intent required for a contravention of [ss 348 or 355], namely an intent to negate choice”: Hall at [41]. To merely allege an “intent to coerce” may not suffice, a matter further discussed at [169] below.

[38]    Second, the evidence must be consistent with the hypothesis that the respondent was actuated to take the impugned action by the reason or intent alleged. I discussed the relevant authorities on that issue in Celand at [155]-[157] (Charlesworth J agreeing) and see Australian Red Cross Society at [67]-[74] (Greenwood, Besanko and Rangiah JJ). As Greenwood, Besanko and Rangiah JJ sought to emphasise by reference to the discussion in Celand, it is not necessary for the applicant to establish a prima facie connection between the alleged action and the impugned reason or intent but only that the connection is not so remote as to be fanciful.

247    It is not in contest that the first precondition was satisfied. The relevant allegation was made in the amended statement of claim as follows:

40.    Qantas took the adverse action described in paragraph 34 above for the reasons or for a reason that included one or more of the following reasons:

…

40.5    to prevent the Affected Employees, following the nominal expiry date of enterprise agreements which covered and applied to them, from participating in a process under the FW Act, being the participation in a protected action ballot and the organising and/or engaging in protected industrial action for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement under the FW Act.

The term “Affected Employees” was defined in the amended statement of claim to include all of the Qantas Airways employees and the QGS employees, without differentiation as to union membership. As the primary judge stated at DJ [26], whilst the focus of the TWU’s case was on union members the broader case was not abandoned and was not limited to union members.

248    As to the second precondition for the engagement of s 361(1), it is not apparent that this precondition was in contest at trial. Qantas made no submission that at issue at trial was a contention that the connection between the adverse action taken against the non-union employees and the impugned reason (specified above) was so remote as to be fanciful. Nor does this or any other ground of appeal contend that the primary judge erred by proceeding on the basis that s 361(1) had been engaged. To the contrary, this ground of appeal is based on an acceptance by Qantas Airways that s 361(1) was engaged and that, accordingly, Qantas Airways had the onus of proof on the issue of whether adverse action was taken against non-union employees for the impugned reason. The submission put in support of this ground identifies the error of the primary judge as that of failing to be satisfied that Qantas Airways had discharged its onus. It is in that context that Qantas submits that the notion that Qantas Airways took adverse action “to prevent something which had no real likelihood of occurring is somewhat fanciful”.

249    It may well be correct to say that a decision to prevent something which has no real likelihood of occurring is somewhat fanciful. By reference to the facts in question, a more apposite formulation of the point sought to be made is that Mr David would not have been motivated to prevent the exercise by non-union employees of the ballot process or PIA in circumstances where it would be fanciful for him to anticipate that those workplace rights would be exercised by those persons. But to state the proposition is not to prove it and the proposition was not proved in circumstances where Qantas had the onus of proof.

250    The fact that the primary judge found that the “evident focus” in relation to industrial risk was on the TWU and the anticipated response of its members does not deny that some risk in relation to non-union employees was also in the contemplation of Mr David. In circumstances where the non-union employees had the legal capacity to join in with union members in a protected action ballot and in PIA organised by the TWU, it was for Qantas Airways to establish that the outsourcing decision was made by Mr David in the absence of any anticipation that non-union employees would participate in those events.

251    The submissions of Qantas do not demonstrate any misapplication of s 361(1) but simply demonstrate a failure by Qantas to properly appreciate that once s 361(1) was engaged it carried the onus of proof on the issue in question.

252    For those reasons ground 5 of the Qantas appeal must be rejected.

Conclusion on the Qantas appeal

253    Having failed to uphold any ground of appeal, it follows that Qantas’ appeal must be dismissed.

THE TWU APPEAL

254    In the reinstatement judgment, the primary judge dismissed TWU’s claim for “general reinstatement” of the affected employees. The TWU appeals from the reinstatement judgment.

255    There were five factors which principally influenced the primary judge’s decision to refuse reinstatement, namely: there would be very significant cost and delay involved in Qantas Airways recreating its ground handling business to allow reinstatement to occur; the number of employees who would want to be reinstated was unknown; any global reinstatement order was likely to produce real uncertainty and ongoing disputation; if the employees were reinstated, Qantas Airways proposed to retrench them as soon as legally possible; and the availability of compensation as a remedy.

256    The grounds of appeal overlap to some extent, but can be broadly summarised as follows:

(1)    The primary judge erred in taking into account and/or giving determinative weight to the cost and inconvenience to Qantas Airways of recreating its ground handling business.

(2)    His Honour erred in determining that a comparison between the remedies of reinstatement and compensation, and a weighing of their relative appropriateness was required and/or erred by failing to fully undertake that comparison.

(3)    His Honour mistook the facts in concluding that there may be little or no work for reinstated employees to do for a significant period of time and/or erred by taking that factor into account.

(4)    His Honour erred in concluding that: there would be uncertainty as to what Qantas Airways would be required to do in recreating its ground handling business; compliance with a reinstatement order would require determination of various commercial disputes; and there would be ongoing disputation if a reinstatement order were made.

(5)    His Honour mistook the evidence in concluding that Qantas Airways would move to retrench reinstated employees as soon as it lawfully could and/or erred by taking that factor into account.

257    Qantas has filed a notice of contention asserting that Qantas Airways would have decided, in any event, to implement the outsourcing decision in 2021, so that any reinstatement would result in affected employees receiving a windfall, namely a return to employment that they would not have had.

258    In order to give context to the primary judge’s reasons for judgment and the parties’ submissions, it is necessary to revisit the procedural history of the reinstatement application and the facts agreed by the parties in greater depth.

Procedural history

259    On 22 December 2020, the primary judge ordered that the question of whether the TWU was entitled to any declaratory relief be determined separately from and prior to any other claim for relief in the proceeding.

260    On 30 July 2021, the primary judge delivered reasons for judgment in the liability judgment, determining that Qantas Airways had contravened s 340(1)(b) of the FW Act. His Honour ordered that the parties provide draft declarations and take the interlocutory steps necessary to advance the TWU’s claims for reinstatement, penalties and compensation.

261    On 25 August 2021, in the declaration judgment, the primary judge made a declaratory order that Qantas Airways had contravened s 340(1)(b) of the FW Act.

262    On 7 September 2021, Qantas filed its application for leave to appeal and also sought an order that “the remedy phase” of the proceeding be stayed pending the determination of the proposed appeal.

263    On 8 September 2021, the primary judge ordered that QGS be joined as the second respondent to the proceeding. QGS operated as a labour hire provider for Qantas Airways and employed the bulk of the affected employees whose employment was terminated as a result of Qantas Airways’ outsourcing decision.

264    On 21 September 2021, Qantas’ stay application was refused by Perram J in Qantas Airways Limited v Transport Workers’ Union of Australia [2021] FCA 1136. His Honour observed that Qantas Airways had engaged third-party contractors by the end of January 2021 and had brought an end to the employment of the affected employees by 31 March 2021. His Honour noted that the primary judge had made extensive directions to bring on the balance of the case for trial as soon as possible. His Honour considered that the risk of prejudice to the TWU in granting a stay outweighed the risk of prejudice to Qantas in refusing a stay, taking into account that there was a real risk that the claim for reinstatement would be imperilled by delay.

265    On 18 August 2021, the primary judge ordered that the TWU deliver points of claim identifying with specificity the relief sought. The TWU sought the following relief in its points of claim:

1.    Orders pursuant to s 545(1) and/or 545(2)(c) of the Fair Work Act 2009 (Cth) (FW Act) that Qantas Airways Limited reinstate employees:

(i)    who were employed by it to perform work in its ground handling operations and to whom the Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018 (QAL Agreement) covered and applied who were terminated as a result of Qantas’ decision to outsource its ground handling operations announced on 30 November 2020 (Affected Qantas Employees); and

(ii)    who do not elect by notice in writing to Qantas within 14 days of these orders not to take up reinstatement,

to the positions they held immediately prior to the cessation of their employment by no later than 28 days of these orders being made.

2.    Orders pursuant to s 545(1) and/or 545(2)(c) of the FW Act that Qantas recognise the continuity of service and employment of the Affected Qantas Employees reinstated in accordance with Order 1 above.

3.    Orders pursuant to s 545(1) of the FW Act that Qantas treat as null and void the termination of its contract for services with Qantas Ground Services Pty Limited (QGS) as a result of Qantas’ decision to outsource its ground handling operations announced on 30 November 2020 and by no later than 14 days of these orders being made re-engage QGS to provide the ground handling services it previously provided under that contract for services.

4.    Orders pursuant to s 545(1) and/or 545(2)(c) of the FW Act and/or s 23 of the Federal Court of Australia Act 1976 (Cth) that within 7 days of Qantas re-engaging QGS in accordance with Order 3 above, QGS reinstate employees:

(i)    who were employed by it to perform ground handling operations work under its contract for services with Qantas and to whom the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS Agreement) covered and applied who were terminated as a result of Qantas’ termination of QGS’ contract for services (Affected QGS Employees); and

(ii)    who do not elect by notice in writing to QGS within 14 days of these orders not to take up reinstatement,

to the positions they held immediately prior to the cessation of their employment by no later than 28 days of these orders being made.

5.    Orders pursuant to s 545(1) and/or 545(2)(c) of the FW Act that QGS recognise the continuity of service and employment of the Affected QGS Employees reinstated in accordance with Order 4 above.

6.    Orders pursuant to s 545(1) and/or 545(2)(b) of the FW Act that Qantas pay compensation for economic loss to Affected Qantas Employees;

(i)    in relation to those Affected Qantas Employees who have elected to be reinstated, up to the date they are reinstated in accordance with Order 1 above;

(ii)    in relation to those Affected Qantas Employees who have elected not to be reinstated or are not subject of an order for reinstatement, in relation to economic loss occasioned up to the date of these orders and in such further amount as determined by the Court.

7.    Orders pursuant to s 545(1) and/or 545(2)(b) of the FW Act that Qantas pay compensation for economic loss to Affected QGS Employees;

(i)    in relation to those Affected QGS Employees who have elected to be reinstated, up to the date they are reinstated in accordance with Order 4 above;

(ii)    in relation to those Affected QGS Employees who have elected not to be reinstated or are not subject of an order for reinstatement, in relation to economic loss occasioned up to the date of the orders and in such further amount as determined by the Court.

8.    Orders pursuant s 545(1) and/or 545(2)(b) of the FW Act that Qantas pay compensation for non-economic loss to Affected Qantas Employees and Affected QGS Employees as determined by the Court.

9.    Orders pursuant to s 546(1) of the FW Act that Qantas pay pecuniary penalties for its contraventions of s 340(1)(b) of the FW Act with any penalties levied to be paid to the applicant pursuant to s 546(3) of the FW Act.

266    The TWU sought orders that the claim for reinstatement be separated from, and heard expeditiously and prior to, the claims for compensation and penalties. That was opposed by Qantas. That issue was determined in the case management judgment on 1 October 2021. The primary judge acceded to the course proposed by the TWU, finding:

[17]    When I first turned my mind to the scope of the relief hearing, it seemed the safer course was to deal with the questions of reinstatement, compensation, and pecuniary penalty all at the one time. A penal order could not be made under s 545 … Section 546 is the sole repository of the power to make penal orders. Having said that, the questions of whether a penalty is to be imposed, its quantum, and the person by whom any penalty would be paid, might all be rationally affected by whether an order should be made under s 545 for statutory compensation.

[18]    After some reflection, however, it seems to me that there is a prospect that after hearing full argument, it may be that I could be persuaded to deal with the question as to whether the Union would be entitled to the relief set out at prayers [1]–[5] of its points of claim in advance of determining whether it is appropriate to make any orders for compensation, or in dealing with the issue of penalty. This is because, as senior counsel for the Union agreed during oral submissions, the issues of reinstatement and statutory compensation in this case are quite separate. The orders sought in prayers [1]–[5] are distinct from the orders sought in prayers [6]–[8]. The latter prayers for compensatory relief take, as their point of departure, the fact that the Union has failed to obtain the “global” reinstatement orders sought.

[19]    Not without some hesitation, I have reached the view that I can look at the relevant counterfactual (or, perhaps more accurately, the alternative) to an order for “global” reinstatement at a level of generality. That is, if I do not make a global reinstatement order, I can proceed on the basis that the Union will seek to persuade me that the appropriate remedial response in those circumstances is an order for statutory compensation made on behalf of each of the affected employees.

…

[26]    Despite some residual misgivings as to the bifurcation of issues, I have determined that I should separate the urgent issue of reinstatement and seek to have that issue heard as soon as possible.

267    The primary judge ordered, relevantly:

1.    Pursuant to rule 30.01 of the Federal Court Rules 2011 (FCR) and s 37P(2) of the Federal Court of Australia Act 1976 (Cth) (Act), the question of whether the applicant is entitled to any relief identified in the Points of Claim document filed on 25 August 2021 at prayers [1]–[5], be determined separately and prior to any other claim for relief in the proceeding (Reinstatement Hearing), subject to further order at the conclusion of the Reinstatement Hearing.

…

17.    The Reinstatement Hearing be listed for hearing commencing at 10.15am on 13 December 2021.

268    His Honour heard evidence of submissions concerning reinstatement over five days and on 17 December 2021 delivered the reinstatement judgment ex tempore, rejecting the application for reinstatement.

269    The TWU’s claims for compensation and penalties are yet to be determined.

The agreed facts

270    The parties produced a document entitled “Amended Statement of Agreed Facts”. It is necessary to recite the facts agreed by the parties at some length to give context to the reasons of the primary judge.

271    The amended statement of agreed facts provides, relevantly:

5.    Qantas Airports Ground Operations was a business function within Qantas. Qantas Airports Ground Operations provided ground handling services (ramp, baggage handling and fleet presentation) across the Airports on behalf of Qantas and under contract for other third parties including Group companies as well as airlines outside of the Group (e.g. American Airlines).

6.    Work performed on Qantas aircraft represented around 73% of ground handling activity within Qantas Airports Ground Operations (i.e. around 73% of the aircraft worked on by the Affected Employees was Qantas aircraft), with the remaining around 27% being work performed on third parties’ aircraft (i.e. around 27% of the aircraft worked on by the Affected Employees was non-Qantas aircraft, including approximately 21% for wholly owned Qantas subsidiaries and approximately 6% for other entities outside the Qantas group). The work performed on non-Qantas aircraft defrayed some of the fixed overheads of ground handling and improved the utilisation of the Affected Employees.

7.    In or around November 2020, Qantas formed the view that third party ground-handling provider proposals received by Qantas during the RFP [request for proposal] process demonstrated that by outsourcing Qantas’ remaining Ground Operations, Qantas could achieve $103m per annum in savings when compared to pre-COVID Ground Operations.

8.    To perform this work there were dedicated people, assets, infrastructure and functions. Specifically:

a)    at the time of the decision to outsource Qantas Airports Ground Operations, there were approximately 1820 Affected Employees performing Ground Operations work. After redeployments and job swaps, there were approximately 1683 employees performing Ground Operations work (Outsourced Employees), made up of approximately:

(i)    550 employed by Qantas; and

(ii)    1133 employed by Qantas Ground Services Pty Limited (QGS);

b)    for the purposes of the relationship with Qantas Airport Ground Operations, QGS was solely a labour hire provider engaged pursuant to the terms of a Service Level Agreement (SLA);

c)    in addition to the Affected Employees, there were in the vicinity of 150 to 200 employees of Qantas engaged to support the Qantas Airports Ground Operations (including, by way of example, workforce planning and management);

d)    Qantas owned and operated around 2600 items of GSE across the Airports. This ranged from baggage containers to motorised pushback tugs and pallet loading devices, all of which were critical to providing ground handling services. Equipment was maintained by around 30 to 50 dedicated employees within the GSE function who would undertake proactive and reactive maintenance (for example if equipment broke during the course of the operation and needed to be quickly repaired);

e)    property was leased from Airport Authorities within terminals to provide employee changing rooms, rest and meal break areas as well as offices and training rooms. Airside areas were leased to store and operate GSE and any other infrastructure to operate ground handling;

f)    Ground Operations manpower was planned and allocated by around 90 dedicated workforce planning resources. Around half of these were based in a centralised function in Sydney and generally undertook planning functions. The remainder were airport based and were responsible for day to day allocation of resources using specialised workforce planning systems and tools; and

g)    Qantas Airports Ground Operations were overseen by around 40 to 60 dedicated Qantas and QGS managers across the Airports with responsibility for all safety, people, customer and commercial outcomes including day to day leadership of the Affected Employees.

9.    Following the announcement of the outsourcing decision on 30 November 2020 (Outsourcing Decision) and subsequent implementation of the Outsourcing Decision the following actions were taken in relation to Qantas Airports Ground Operations:

a)    seven external third party ground handling contracts were terminated or have been the subject of notice of termination issued by the external third party to Qantas (which are due to take effect shortly);

b)    all Ground Operations roles were made redundant, and all the Affected Employees were either retrenched or redeployed into the Qantas Group;

c)    approximately 2600 items of GSE were disposed of through sale to third parties;

d)    approximately 24 GSE maintenance engineer roles and various other head office roles were made redundant;

e)    32 leases were returned to Airport Authorities and a further 33 were sublet to incoming third party ground handling service providers (Ground Handling Companies);

f)    the workforce planners referred to at paragraph 8.f) above were made redundant, with almost all such employees leaving Qantas; and

g)    the Qantas and QGS Ground Operations managers referred to at paragraph 8.g) above were retrenched.

10.    Qantas and QGS operated in accordance with the SLA in relation to ground handling services provided by QGS to Qantas at the Airports until the arrangement concluded with respect to the Airports.

11.    QGS ultimately ceased providing services to Qantas at the Airports pursuant to the SLA around April 2021, however, the extent of these services progressively reduced from December 2020 onwards.

12.    Following the implementation of outsourcing to the Ground Handling Companies, the Qantas Airports Ground Operations business ceased to exist and its people, assets, infrastructure and related support functions are no longer a part of the Qantas Group.

13.    In order for the respondents to comply with global reinstatement orders of the kind sought in paragraphs 1 to 5 of the applicant’s Points of Claim dated 25 August 2021, Qantas would need to substantially recreate its Qantas Airports Ground Operations business.

14.    Qantas’ ability to implement the steps set out in paragraphs 15 to 16 to below is contingent on various factors, including:

a)    Qantas having the necessary funds in order to undertake the capital expenditure identified;

b)    the availability in the market of suitably qualified personnel for each of the roles identified, including for specialised roles such as workforce planning; and

c)    the availability in the market of the necessary GSE.

15.    In order to do this, Qantas would need to take a significant number of steps (many of which are not within the current control of Qantas) including (but not limited to):

Ground services equipment

a)    Qantas would be required to buy back approximately 2600 items of GSE from the Ground Handling Companies at a projected cost of at least $5 million. This amount could be higher if Qantas is unable for any reason to acquire sufficient GSE from the Ground Handling Companies and is required to go to market;

b)    Qantas has previously assessed that it would be required to upgrade the required GSE to meet safety-based modernisation requirements, with a projected cost of in the order of $24 million as an initial tranche (i.e. within 12 months of any reinstatement order). Over five years, it is estimated that safety upgrades to GSE would cost $80 million; and

c)    Qantas would be required to recruit, train and employ up to 50 GSE maintenance engineers across 10 ports to provide maintenance services in respect of the required GSE, with a projected cost of approximately $0.5m as one-off costs for onboarding and training and then ongoing salary costs of around $5million per year.

Leasing arrangements

d)    Qantas would be required to seek to make arrangements with the Ground Handling Companies and airport authorities to re-lease (if possible) Qantas terminal and airside spaces which if agreed would have a projected total cost of approximately $15 million per year.