On 13 September 2023 the High Court of Australia upheld the two rulings made by the Federal Court which determined that Qantas illegally sacked more than 1600 workers during the Covid-19 pandemic.
During the Covid-19 pandemic, Qantas terminated the employment of over 1600 baggage handlers and cleaners on the basis of commercial reasons following a deterioration in the business and the impact of the pandemic. The Transport Works Union (TWU), deemed otherwise and maintained the position that Qantas terminated these employees, following the commencement of industrial action.
The TWU filed with the Federal Court on the basis that the termination of each employee was a breach of the Fair Work Act 2009 as Qantas had taken adverse action against each employee to prevent them from exercising a workplace right. Section 340 of the Fair Work Act provides protection to all employees preventing adverse action from being taken against them for exercising a workplace right, regardless of whether that person has the workplace right at the time the adverse action is taken.
In July 2021 the Federal Court determined that Qantas had breached the Fair Work Act in order to avoid industrial action. Qantas appealed this decision to the High Court of Australia arguing that the employees did not have the rights asserted by the TWU at the time the outsourcing took place and further that it was a necessary decision as the pandemic had significantly impacted the airline’s revenue stream, leaving the airline ‘bleeding cash’.
The Federal Court and the High Court have now both determined that Qantas had in fact breached the Fair Work Act in outsourcing grounds operations to avoid enterprise bargaining rights (industrial action) after the TWU took legal action against Qantas. Whilst the High Court appreciated that Qantas may have had commercial reasons for the outsourcing decision it was taken to prevent the affected employees from exercising workplace rights to organise and engage in protected industrial action and to participate in bargaining.
Qantas has since issued an apology, accepting the High Court’s decision and stating:
‘the decision to outsource the remainder of the airline’s ground handling function was made in August 2020, when borders were closed, lockdowns were in place and no COVID vaccine existed as we have said from the beginning, we deeply regret the personal impact the outsourcing decision had on all those affected, and we sincerely apologise for that’.
The TWU has now called for Qantas to ‘hurry back to the Federal Court’ to determine compensation for the workers and their families. Qantas may also be facing fines, to ensure that other companies are deterred from taking similar actions against their employees.
These decisions by the Federal Court and the High Court reiterate that it is critical that employers do not take adverse action against their employees for exercising a workplace right. This case reminds employers that there is an obligation that they are able to demonstrate the cause of their decisions in relation to employees, and must be able to show that their decision was not to avoid the exercise of a workplace right – even if that right does not exist at the time of the decision, but may exist in the future.