Qantas has vowed to appeal a court ruling that its decision to outsource thousands of jobs was unlawful, saying it “fundamentally disagrees” with the decision.
The Federal Court found on Friday that the airline giant’s decision to dump some 2000 ground staff and engage sub-contractors instead may have been partly driven by a desire to prevent future industrial action.
That is a prohibited motivation under the Fair Work Act and makes the November 2020 decision unlawful.
The Transport Workers’ Union, which brought the case on behalf of the dismissed workers, said staff “whose lives have been put into turmoil” would be expecting their jobs back as soon as possible and would seek meetings with Qantas to ensure that happens.
A TWU survey of the workers found that 77 per cent wanted their jobs back. Some 75 per cent have not been able to find full-time work.
But Qantas said it would resist any attempts to make it reinstate the workers or pay them compensation.
The court is yet to decide what should happen next.
Qantas Group executive John Gissing said that the TWU had a “persecution complex”.
“The fact is, Qantas deals with the operational risk of industrial action on a regular basis … That risk pales in comparison with a pandemic that has grounded our fleet and our people for months, and has so far cost us $16 billion in revenue,” he said.
The decision to outsource the ground handling operations was motivated only by lawful commercial reasons, he said. The company says it has saved more than $100 million a year.
The TWU argued in court that the idea to outsource the jobs pre-dated the virus.
Justice Michael Lee paraphrased its argument: “Qantas embraced the approach of ‘never letting a good crisis go to waste’.”
He denied the union’s claims that the litigation was a test case on outsourcing in general, describing it as a “fact-specific” case.
“Despite some public statements to the contrary, this is not a test case about the industrial phenomenon of ‘outsourcing’, nor indeed is it a test case about anything at all,” he said.
Justice Lee knocked back other parts of the union’s claims, including about who made the decision to outsource.
Under the Fair Work Act, Qantas had to prove that it didn’t take into account a prohibited reason when its executive Andrew David decided to take the ground-handling operations to a sub-contractor.
But the judge said it was difficult to establish what the motivations for the decisions were, as Qantas’ witnesses were well-prepared and the documents about the decision were created with legal risk in mind.
He did not criticise Qantas for that, but said that “people often write or speak with greater candour if they assume their comment is going to be kept confidential”.
The outsourcing decision left baggage handlers, ramp workers and cabin cleaners across 10 airports, including Sydney and Melbourne, out of work.
TWU national secretary Michael Kaine said senior Qantas management had “serious questions to answer” following the judgment.
“The federal government’s role in this must also be examined. It has pumped $2 billion of public funds into Qantas while allowing the airline to wage a war against its workers in a bid to drive down wages,” he said.
The federal opposition applauded the court’s decision.
Shadow ministers Tony Burke and Catherine King congratulated the workers for standing up for their rights, and called on the government to develop a plan to give more support to the aviation sector.