TWU demands Qantas be fined up to $121m as judge expresses scepticism over airline’s remorse

Federal Court judge Michael Lee has shot a hole in Qantas’ claims of remorse for the unlawful outsourcing of 1820 workers, on day one of the airline’s penalty hearing.

Federal Court judge Michael Lee has questioned the sincerity of Qantas’ remorse for illegally outsourcing the jobs of more than 1800 ground-handling workers, pointing out that the airline had sought to pay zero compensation to those affected.

The long-running case brought by the Transport Workers Union is now in its final stages, almost four years after Justice Lee found Qantas was motivated by unlawful reasons when it outsourced its below-the-wing workforce.

In the first day of hearings to determine what penalty the airline should face, Qantas chief people officer Catherine Walsh stressed how “deeply sorry” she was for the outsourcing which occurred before her appointment.

Ms Walsh said that view was one she held when she began in the role in February 2024, and continued as she came to understand the background of the matter.

“You understand the primary case put before me (by Qantas) at the compensation hearing, was that I should accept the ‘logical counterfactual’ and that would’ve meant that no compensation would’ve been payable to the workers?” Justice Lee asked.

“Yes,” Ms Walsh responded.

“Were you aware of that as of March 2024 – at the time when you were deeply, very sorry for the workers and the impact to employees – that was the primary case being advanced by Qantas in court?” Justice Lee continued.

“I can understand the view at the time was the need to put all matters before the court, and the court made the appropriate determination,” Ms Walsh said.

“Hopefully you can see from the size of the compensation payment ($120m) that in fact we are very sorry; we do wish for the workforce to be properly remediated.”

Baggage handlers loading a Qantas aircraft at Brisbane Airport after the airline outsourced the work to third-party companies. Picture: Dan Peled

The TWU, whose representation of Qantas workers was dramatically reduced as a result of the outsourcing, wants the court to impose the maximum penalty of $121m.

In his submission to the court, barrister for the TWU Noel Hutley, SC, said the unlawful outsourcing was the “largest ever contravention of the general protection provisions of the Fair Work Act, and the preceding legislation dating back to 1904”.

“The contravening conduct was engaged in solely for money, and in pursuit of Qantas’ economic self interest,” Mr Hutley said.

“Qantas prioritised its commercial interests over those of its loyal employees by we say clearly and demonstrably, breaching the norm prescribed by Section 341b of the Fair Work Act.”

Mr Hutley said the TWU submitted that Qantas attempted to “reverse engineer” the decision-making process by crafting reasons for the outsourcing that would survive scrutiny by the court.

“The processes deployed by Qantas made detection of its contravention all the more difficult,” he said.

The court heard that weeks before the outsourcing was first announced in August 2020, Qantas held meetings with lawyers, drafted affidavits and discussed who should be named as the sole decision maker.

“A strategy was being put in place … to effectively, cynically create a trail which disguises what in truth is happening,” Mr Hutley said.

Justice Lee asked whether the attempted cover-up by Qantas warranted the imposition of the maximum penalty.

He made the point that it was a standard discovery order he issued which turned up a single handwritten document that “gave a window into what was happening”.

It was revealed that the original document was never found – only a scan that was part of an email.

“The message must be sent to the broader corporate community that you can’t play the court for a fool and try to fashion your evidence in a careful way, in order to try to dissemble what went on,” said Justice Lee.

Qantas barrister Justin Gleeson, SC, was expected to make his submissions to the Federal Court on Tuesday.

Originally published as TWU demands Qantas be fined up to $121m as judge expresses scepticism over airline’s remorse