TWU wraps up case for compensating outsourced Qantas workers

Compensation for Qantas workers whose jobs were unlawfully outsourced should be decided in coming weeks, after the Federal Court hearings wrapped up.

Baggage handlers load luggage onto a Qantas aircraft in Adelaide. Picture: NCA NewsWire

Almost 1700 ground handling workers whose jobs were unlawfully outsourced by Qantas at the height of the Covid pandemic should learn in a matter of weeks what compensation they will receive after the Federal Court case examining the matter wrapped up on Thursday.

The 1683 employees have already waited almost three years since Justice Michael Lee delivered his decision that Qantas was motivated by unlawful reasons when it axed the below-the-wing workforce.

In the final hearing, the Transport Workers Union argued that redundancy payments given to the employees by Qantas should not be factored into any compensation.

Barrister for the TWU Philip Boncardo told the court redundancy payments were in a different category to loss of earnings, and it was wrong for Qantas to ask that they be taken into account.

“Qantas’s contention is ‘but for the outsourcing Qantas employees wouldn’t have received redundancy entitlements and therefore they can be brought to account in determining compensation’,” Mr Boncardo said.

“A claim for compensation is a claim for lost earnings. It’s not a claim for long service leave, annual leave, sick leave and the intangible benefits that accrue from long term employment which the payments for redundancy that the employees received were directed at.”

The TWU’s case for compensation was centred on the theory that the ground handling workforce would have remained long-term employees of Qantas had their jobs not been unlawfully outsourced.

Qantas on the other hand argued the outsourcing would have taken place if not in 2020 than in 2021 because the Covid pandemic had continued to restrict flying and slash revenue.

Mr Boncardo told the court the premise posed by Qantas was “fundamentally flawed” because outsourcing the employees in 2021 would still have been unlawful due to the fact the same characters were involved.

Justice Michael Lee’s original judgment in the outsourcing case found two senior managers, Colin Hughes and Paul Jones, had “proscribed” or unlawful reasons for the action.

In 2021, Mr Jones had left Qantas but Mr Hughes was still employed and Andrew David was still the Qantas Domestic and International chief executive.

“Our submission is that Your Honour would not be satisfied given the same characters are involved, the same solicitors are involved,” Mr Boncardo said.

“Your Honour can’t be satisfied in those circumstances that the decision ultimately would’ve been an unlawful one in 2021.”

1683 ground handling workers whose jobs were unlawfully outsourced by Qantas should learn what compensation they might receive in coming months. Picture: Brendan Radke

Justice Lee said the matter was “extraordinarily difficult” given the hypothetical situations being proposed by either side.

To assist with his decision, he asked if both Qantas and the TWU could prepare a short note on the idea raised by Mr Boncardo that an outsourcing by Qantas in 2021 would have also been unlawful because of Mr Hughes’ involvement.

“This is not to suggest I’ve reached a firm view one way or the other about how I’m going to decide the case — I can tell you I haven’t,” Justice Lee said.

“But I’m curious for your responses as to the principled way the court should approach the scenario because there are a number of conceptual difficulties I’ve been thinking about.”

He asked for counsel to provide their submissions by close of business on Monday, at which time he would reserve his decision in the case.

It is unclear when workers might learn the outcome, but Justice Lee has previously expressed his concern about the length of time employees have waited for the matter to be finalised.

His original decision was delivered in July 2021 but that was quickly followed by an appeal to the Full Federal Court by Qantas, which then took the matter to the High Court.

In both instances, Justice Lee’s ruling was upheld.

As well as compensation for the workers, Justice Lee is expected to determine what penalty Qantas should pay for the unlawful outsourcing at the height of the Covid crisis.

The TWU is believed to be seeking a fine in the vicinity of $200m.

On May 7, Qantas agreed to pay a $100m fine and $20m compensation to passengers who were not informed for days and sometimes weeks that their flights were already cancelled over several months in 2022.

Originally published as TWU wraps up case for compensating outsourced Qantas workers