Qantas heads to the High Court with job outsourcing battle

By James Harrison

Qantas has taken its job outsourcing battle against the Transport Workers Union (TWU) to the High Court to appeal the decision that found the flying kangaroo acted unlawfully when it outsourced almost 2000 ground handling workers.

The original decision came in late-2020 as the pandemic unfolded, with Qantas insisting that its move to hire third-party contractors for below wing services was motivated by financial constraints.

However, the TWU claimed the national carrier used the pandemic as an excuse to remove highly unionised workers from the company.

A Federal Court judge, Michael Lee, found in favour of the TWU in July 2021, determining that Qantas did not prove it was not motivated by a desire to avoid industrial action by the union workers.

Qantas appealed this but the Full Federal Court upheld the decision on 3 May, spurring Qantas to take matters to the High Court to reverse the decision.

The Australian reported Qantas’ application for special leave to appeal the ruling, arguing that the Full Court made a mistake by concluding that the Fair Work Act extended to “future workplace rights.”

The Full Court had made assumptions about section 340 of the act that wasn’t supported by the legislation, the application argued.

“Had parliament intended to expand the protection afforded by sections 340 and 341 and include future rights within the concept of workplace rights, it would have stated that expressly,” said Qantas’ application to the High Court.

“Indeed if the Full Court’s construction is correct, it extends the protections of the Fair Work Act into an area where its predecessors had never reached, and without any suggestion in the extrinsic material of any such legislative intent.”

As to why Qantas should be given special leave by the High Court, the national carrier said the Full Court’s construction had “significantly altered the balance between employers and employees in the operation of the Fair Work Act”.

“The application is of general public importance given the large number of employees directly affected by the proceedings and the clear implication for other employers/employees facing like situations,” the document said.

In response to Qantas’ appeal, the TWU called it “another callous tactic by the airline to target workers prepared to stand up against the corporate bully and fight collectively for fair pay and conditions at the airline.”

The TWU released a statement yesterday that said the outsourcing of work devastated the lives of almost 2000 workers. The union said the court has heard stories over the past two years of how people’s lives have been devastated by the outsourcing; the loss of family homes, relationship breakdowns and serious mental health issues – including suicidal thoughts – being cited.

TWU national secretary Michael Kaine said Qantas’ behaviour was completely out-of-touch with community expectations from a company that claims to be the “Spirit of Australia”.

“Qantas workers bravely stood together and fought Australia’s worst corporate bully for over 18 months,” Kaine said.

“Qantas’ disgraceful and illegal behaviour cost workers homes, marriages, and livelihoods. Workers have been vindicated by the Federal Court on two occasions, but as if the emotional toll of the outsourcing and legal process hasn’t been enough, Qantas now wants to prolong their suffering through more unnecessary and expensive legal proceedings.”

Following Qantas’ second loss in the Federal Court, the TWU has called for the Qantas Board to sack CEO Alan Joyce and key outsourcing decision-maker CEO of Domestic and International Andrew David for their role in the illegal decision.

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fair work act Full Federal Court High Court Michael Kaine Michael Lee qantas Transport Workers Union twu