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Thousand of former Qantas workers will be able to seek compensation from the airline after the High Court upheld an earlier ruling that the Flying Kangaroo illegally terminated their employment.
The Full Court of the High Court of Australia unanimously dismissed Qantas’s final appeal, upholding the Federal Court’s original decision that the airline had breached the Fair Work Act 2009.
It follows Qantas’s announcement in November 2020 that it would outsource its ground handling operations to third-party contractors at 10 Australian airports. The decision affected around 1,700 former staff.
The TWU – which brought the action on the worker’s behalf – and its national secretary, Michael Kaine, told the media outside the court the union had achieved a “magnificent victory” over the “spiteful, illegal profit interests of disgraced CEOs like Alan Joyce”.
Sally McManus, secretary of the ACTU, added it was a “great day” for the former Qantas staff.
“When you decide to fight Qantas, you know you have to throw everything at it because they’re going to throw everything at it. It’s a real David and Goliath struggle,” McManus said.
The Federal Court originally found that although Qantas had “sound commercial reasons” for removing the staff, its “substantial and operative” reasons were to prevent the affected employees from exercising their workplace rights to “organise and engage in protected industrial action and to participate in bargaining”.
Those “substantial and operative” reasons were a costs-saving initiative of around $100 million a year when operations “returned to normal” after the pandemic, and a provision that Qantas would only have to pay when an aircraft needed to be “turned”.
It also wanted to prevent the need for capital expenditure of $80 million over five years in updated equipment for in-house services.
By following through with the outsourcing, Qantas breached section 340(1)(b) of the Fair Work Act 2009, which provides that a person must not take “adverse action against another person… to prevent the exercise of a workplace right by the other person”.
Qantas appealed on the grounds that section 340(1)(b) only applied when there was a workplace right “presently in existence”. It added that due to the timing of the outsourcing and court action, “the Act… denies TWU and employees the right to oppose the decision by industrial action, a denial which delay might reverse”.
The High Court found this argument was “flawed” and rejected Qantas’s construction of the Fair Work Act.
One of the affected workers told the media it was a “fairy tale come true”.
“The last three years have been horrendous for my colleagues and myself. A lot of us have struggled to gain other employment,” he said.
“This is a case of redemption for us today to come away with a unanimous win.”
TWU had asked the Federal Court to reinstate the workers, but this was found to be impractical. Instead, the High Court decision has made it possible for the workers to see compensation.
Michael Pilling
says:QANTAS would do well to heed what happened to Boeing after they made it their mission to push out their unionised workforce. Unending quality problems. Stalled production lines. And of course the MAX disaster.
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says:Unfortunately when one decides to enter the world of litigation, the experts, the Judges, prescribe the “law” only the law and as we all know, sometimes the “law is an ass”. In this final judgement the High Court has quite clearly confirmed a previous judgement nominating “sound commercial reasons” for the QF outsourcing decision. It has also identified what they say is “substantial and operative reasons” etc as above as their explanation for their final verdict against QF. That verdict quite clearly indicates that all similar future company attempts at restructuring or similar are doomed to failure because of the “Act” itself and so in this regard a serious reassessment of the practical validity of the “Act” must be undertaken and soon. Considering this, did QF act illegally or were their actions a procedural oversight resulting from an obtuse “Act”. I believe that their Lordships should have addressed that point but then they only prescribe the law.