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Fired workers secure ‘fairy tale win’ over Qantas in High Court

Thousands of former Qantas workers can now seek compensation from the major airline after it failed to overturn a Federal Court finding that it illegally terminated their employment during the pandemic.

user iconNaomi Neilson 13 September 2023 Big Law
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The full court of the High Court of Australia unanimously dismissed Qantas’ appeal on Wednesday (13 September) morning, upholding the Federal Court’s decision that the airline had breached the Fair Work Act 2009 by illegally firing 1,700 ground staff at the end of 2020.

Transport Workers Union (TWU) – which brought the action on the worker’s behalf – and national secretary Michael Kaine told media outside the court they had achieved a “magnificent victory” over the “spiteful, illegal profit interests of disgraced CEOs like Alan Joyce”.

Sally McManus, secretary of the Australian Council of Trade Unions, added it was a “great day” for the former Qantas staff.

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“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,” Ms McManus said.

In November 2020, Qantas announced the decision to outsource its ground-handling operations to third-party contractors at 10 Australian airports. The remaining 10 airports were to remain in-house.

Although it had “sound commercial reasons”, the Federal Court found 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, 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’ 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.

“This is a case of redemption for us today to come away with a unanimous win,” he said.

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.

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