Justice Michael Lee saves his best lines for last in Qantas unlawful outsourcing case
Federal Court judge Michael Lee has poured 4½ years of frustration at Qantas’s conduct in an unlawful outsourcing case into his blistering final ruling.
Federal Court judge Michael Lee’s frustration at the way Qantas defended an unlawful outsourcing case has boiled over in his final judgment, which imposed a record $90m fine against the airline, $50m of which will be paid to the Transport Workers Union.
Business groups slammed the decision to give the TWU more than half the payout as a dangerous precedent that would fund a union “shakedown” of corporate Australia.
Australian Chamber of Commerce and Industry chief executive Andrew McKellar said the payment to the TWU would “incentivise other unions to look at pursuing legal claims and litigation regardless of the merits of those claims”.
After 4½ years of hearings and two unsuccessful appeals by Qantas, Justice Lee let fly in an hour-long summary of his 90-page judgment, criticising the airline for the way in which it ran the case, its belated contrition, and even its involvement in the voice referendum.
He said Qantas’s conduct revealed “an attitude of adamantine self-righteousness”, and suggested public apologies for the illegal sacking of 1820 workers amounted to the “wrong kind of sorry”.
It was only now that the full extent of damage done to the airline was apparent, “that persons of responsibility within Qantas do have some genuine regrets”, Justice Lee said.
“As to whether Qantas is truly contrite, I have hesitation in reaching that conclusion. Its conduct of the case and its public comments throughout the case give reason for pause.”
Much of his scepticism around the remorse, was borne out of Qantas’ attempt in April 2024 to deny outsourced workers even a cent in compensation.
The strategy presented as the “logical counterfactual” was unveiled during hearings to determine an appropriate level of compensation for the affected workers.
“If any further evidence was needed as to the unrelenting and aggressive litigation strategy adopted in this case by Qantas, it is provided by this effort directed to denying any compensation whatsoever to those in respect of whom Qantas was publicly professing regret for their misfortune,” said Justice Lee.
“To deprive someone of work illegally is to deprive a person of an aspect of human dignity and this is not assuaged simply by mouthing expressions of regret.”
There were also misgivings about “precisely what occurred within the upper echelons of Qantas leading up the outsourcing decision” due to the unreliability of affidavit evidence, he said.
His concerns were exacerbated by Qantas’s claim no minutes or notes were taken in top level management committee meetings, and what was communicated orally “remained obscure”.
Justice Lee expressed his belief former chief executive Alan Joyce was involved in the outsourcing decision made in late 2020, but said it was unnecessary for the judgment to resolve that concern.
He made it clear he disapproved of other aspects of Mr Joyce’s time as chief executive, and ridiculed the repeated use of the phrase “spirit of Australia” in court documents produced by the airline.
“In recent times, some officers of Qantas have apparently perceived the corporation as occupying such a position of national importance that it has injected itself into political and cultural debates by being a partisan for one side,” he said, referring to Mr Joyce’s support for the marriage equality and voice referendums.
Current chief executive Vanessa Hudson did not escape Justice Lee’s wrath either, after failing to appear on the witness stand to shed light on the unlawful outsourcing decision, or the cultural changes said to have occurred in the years following.
He said it seemed “obvious” that Ms Hudson was uniquely placed to assist the court, as a very longstanding employee of Qantas and a member of the group management committee.
“I infer the decision of Qantas not to call Ms Hudson was an informed and deliberate one,” Justice Lee said. “It is one thing for the ‘Qantas News Room’ to issue press releases by a CEO saying sorry; it is quite another for written assertions of contrition, recognition of wrong and cultural change to be tested in a courtroom by senior counsel for a party submitting that Qantas is engaged in performative remorse.”
Hours after the judgment, Qantas issued a further apology to the affected workers and acknowledged the outsourcing had “caused real harm”.
Ms Hudson said the impact was felt not only by those who lost their jobs but by “our entire workforce”.
“Over the past 18 months we’ve worked hard to change the way we operate as part of our efforts to rebuild trust with our people and our customers,” she said.
“This remains our highest priority as we work to earn back the trust we lost.”
It was as not clear if Ms Hudson or Mr Joyce would face a further cut to their deferred long-term bonuses as a result of the case.
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