Judge’s tongue-lashing of TWU as compensation hearings for Qantas outsourcing kicks off

A Federal Court judge has accused a union of not looking after its members in a fiery start to compensation hearings for the Qantas outsourcing decision.

The Transport Workers Union has been accused of not looking after its members in a fiery start to compensation hearings for workers whose jobs were unlawfully outsourced by Qantas.

In his opening remarks to the Federal Court on Monday, barrister Mark Gibian SC for the TWU said there would be a separate claim by the union for compensation for the loss of membership fees from the affected workers.

Justice Michael Lee responded that it was the “first he’d heard of that” and admonished Mr Gibian and the TWU for “wasting the court’s time”.

He said it was always his intention of dealing with all compensation matters at the present hearing, for which he had set aside seven days.

Justice Lee referred to remarks he had made last September expressing that and asked “what possible excuse” Mr Gibian and the TWU could have for not being ready to proceed with the issue now.

“Why have you sat on your backside, and not organised yourselves? What possible excuse is there? Why wouldn’t you use the resources of the court properly?” said a clearly enraged Justice Lee, who recently presided over the Bruce Lehrmann defamation trial. 

“I’m not having two separate hearings for compensation, I’m just not doing it. I haven’t got endless time to deal with successive cases.”

Federal Court Justice Michael Lee at a conference in Melbourne. Picture: Aaron Francis

He continued that he had wanted to deliver “quick justice” to the workers who had waited years for compensation.

“It’s all very good sending tweets patting yourselves on the back about how much you’re looking after your members, but perhaps using court processes responsibly in order to get this resolved quickly for members might be a good way of proceeding,” Justice Lee said.

He asked if Mr Gibian could be ready to proceed with the matter from 10.15am on Tuesday, with Justice Lee suggesting it was a “pretty narrow factual issue”.

However, Matthew Follett SC for Qantas, said it was a not a straightforward matter of calculating the fees the ex-workers would have paid to the TWU.

“The first thing to do is work out how many (TWU) members there were, second — how many were financial members; third — of those financial members how many continue to be financial members or not and fourth, why they’re not financial members — they might be in a position to be a financial member but have chosen not to be,” Mr Follett told the court.

“Why should Qantas have to compensate those?”

After further discussion, it emerged Justice Lee had previously told the parties at a roundtable that he would deal with the union compensation matter at the same time as the hearing to determine what penalty Qantas would face.

The original hearing, to decide what compensation should be paid to the 1683 workers whose jobs were outsourced, then proceeded as planned.

For the rest of the hearing, the affidavits of three “test cases” put forward by the TWU were scrutinised, with Mr Follett arguing why certain parts of the statements should be struck out.

The TWU launched legal action against Qantas in 2021, with Justice Lee finding the airline had contravened the Fair Work Act with its decision to outsource its ground handling workforce.

Qantas appealed to the Full Federal Court, and then to the High Court, both of which upheld Justice Lee’s original ruling.

An application by the TWU to order the reinstatement of the workers was refused by the courts as “too complex”.

In an effort to resolve the compensation matter, Justice Lee ordered the TWU and Qantas into mediation, but agreement could not be reached.

It was expected Qantas would face a significant compensation bill and fine, for the outsourcing which saw the work go to companies such as Swissport, Menzies and dnata.

A Qantas spokesman said they sincerely apologised and deeply regretted the personal impact the outsourcing decision had on former employees.

“We want them to receive fair compensation as quickly as possible,” he said.

Originally published as Judge’s tongue-lashing of TWU as compensation hearings for Qantas outsourcing kicks off