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Qantas argues TWU is not telling the truth over outsourcing case

written by Adam Thorn | December 9, 2020

Qantas has accused the TWU of not telling the truth in response to the union filing an outsourcing ‘test case’ against the airline in the Federal Court.

The business specifically rejected claims by the TWU’s lawyer that it has transferred ground handling roles to “labour hire firms” and denied it had abused JobKeeper subsidies. It also hit back at the central claim that it removed in-house roles to avoid collective bargaining agreements.

On Wednesday, the TWU tasked infamous Waterfront dispute lawyer Josh Bornstein with arguing in the Federal Court that the airline’s proposals contravene the Fair Work Act. If successful, a potential ruling could have major ramifications for other businesses.

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The disputed Qantas plans would see the airline brand remove operations at the 10 Australian airports where the work is done in-house, which includes Adelaide, Alice Springs, Brisbane, Cairns, Canberra, Darwin, Melbourne, Perth, Sydney and Townsville.

Maurice Blackburn principal Josh Bornstein said the legal challenge would put “outsourcing on trial”.

Qantas has issued a furious, 600-word response in which it compares the “union claim” with the “facts”.

It reads:

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  • UNION CLAIM – Qantas is outsourcing this work to ‘labour hire companies’.
  • FACT – This is not correct. The specialist ground handlers are not labour hire companies. They will be contracted to deliver a service (e.g. baggage handling/ramp or aircraft cleaning) not simply to provide labour, just as they are at the 55 airports that we already use them. Every major airline around the world uses ground handling companies including Virgin, Air New Zealand, Emirates.
  • UNION CLAIM – Qantas is seeking to avoid collective bargaining as the law firm claims.
  • FACT – This is not true. Collective bargaining has nothing to do with our decision. We will continue to bargain with the TWU and many other unions across our workforce. In fact, there are hundreds of Qantas Freight employees who remain employed under the same EBAs as the affected ground handling employees.
  • UNION CLAIM – Qantas has violated the intent of the JobKeeper scheme, and abused taxpayers’ money. They should pay it back.
  • FACT – The lion’s share of government support we’ve received has been through JobKeeper, which has been a lifeline for our employees who were stood down. We have fully complied with the spirit and purpose of JobKeeper – including recognising when jobs aren’t coming back and making those jobs redundant. The rest of the government support was used to maintain critical domestic and international air services – which in turn generated paid work for our people. The TWU’s demand that Qantas pay back government support such as JobKeeper would require us to claw it back from their members – which makes no sense.

The response is unlikely to deter the TWU’s plans to pursue the case in the Federal Court.

The union has even hired the heavyweight lawyer who helped win the infamous Waterfront dispute, Josh Bornstein, to lead the response.

“If Qantas can replace thousands of its employees with cheaper, insecure labour hire employees then this can happen to any other employee in any Australian workplace,” said Bornstein.

“This important test case for the TWU will determine whether Qantas’ decision to sack 2,000 workers to outsource these jobs breaches workplace laws.

“The Fair Work Act makes clear that you can’t sack employees because they are entitled to collectively bargained employment conditions. By outsourcing this work, Qantas is seeking to avoid collective bargaining under the Fair Work Act.

“If the outsourcing proceeds, Qantas will no longer have to negotiate with the workers who perform the work. Instead Qantas will be able to unilaterally impose a price for the services of outsourced workers, and those outsourced workers will not be allowed to bargain with Qantas under current IR laws.

“The coronavirus pandemic has highlighted the plight of insecure labour hire and outsourced workers: they aren’t paid properly, they work in unsafe conditions and they are forced to scrounge a living working at multiple jobs. Qantas has decided to pour petrol onto that fire.

“This decision is bad for workers, customers and the Australian economy. More low wage, insecure jobs means less spending and more damage to a fragile economy. The only beneficiaries are big shareholders and Qantas executives.”

Australian Aviation first reported that the TWU had enlisted Bornstein in September.

The union said it recruited him because of the apparent similarities between this case and the 1997 Waterfront dispute, which saw seaport operator Patrick Corporation dismiss its unionised workforce. The decision was later found to be illegal in the Federal Court.

So high profile was Bornstein’s role in the victory that an ABC fictionalised dramatisation of the case famously depicted Bornstein reading legal texts in the nude.

He was also recently awarded the “Workplace Relations Partner of the Year 2019” at the Lawyers Weekly Partner of the Year Awards and has been ranked as Victoria’s top employment lawyer for employees.

His clients have included broadcaster Ross Stevenson, publisher Louise Adler, the State of Victoria, Essendon Football Club and writers Marieke Hardy and Clementine Ford.

In June, the wider Qantas group said it would cut 6,000 jobs altogether, or nearly 20 per cent of its workforce, before it later revealed the news around ground handling jobs.

The drastic cuts followed the business’ full-year financial results showing a loss before tax of $2.7 billion and an underlying profit before tax of just $124 million.

0 Comments

  • What a farce! Back in the 2012 Agreement the Union sought to have clauses inserted allowing them to bid for any handling and cleaning contracts outsourced. The stubborn poorly managed TWU guided by NSW Senator Tony Sheldon should have been guiding their membership to let go questionable work practices existing at Qantas and do away with shift covers on overtime, fixed work gangs even when the work doesn’t exist and so it goes on. The practices flowed on from the wharves decades ago.
    The fact a contractor with significant corporate overheads can do the job with 900 less and bill Qantas so it saves $103m per year says it all.
    I hope they have Maurice Blackburn on a no win no fee like so much of their business. Regrettably TWU has never been that smart.
    This behavior should encourage Qantas to out source their Freight Ramp and Shed operations and make more savings. Not smart to prod the bear when he is wounded!

  • Martin

    says:

    The article indicates “the TWU tasked infamous Waterfront dispute lawyer Josh Bornstein”. The term “infamous” has negative connotations, from the Collins dictionary: “…having a bad reputation, notorious…”. Surely this all depends on the perspective you look at it. From an employees perspective, surely he would have a “famous” reputation for having successfully defended workers rights in a legal way in an Australian court of law? Or have I missed something?

  • Vannus

    says:

    TWU will do ANYTHING that gets QANTAS in the muck!
    This is purely ‘revenge’ by TWU, for the Company grounding the fleet in Oct 2011, brought about by three months’ of daily TWU strikes, caused havoc on every level.
    TWU has taken legal action TWICE, against QANTAS, in the last few months’, & LOST!
    It will do so again, even with some so-called ‘hot shot’ lawyer!

  • Jonathan

    says:

    Big difference between the two cases.
    The 1997 one wasn’t brought about due to a worldwide pandemic, & the cost to companies’ of that.
    TWU just wanting to screw QANTAS anyway they can.
    TWU wasting members’ funds for the THIRD time in as many months’. When are those members’ going to stand up & be counted, in telling their union to stop wasting their inputted membership funds?
    The TWU will not be successful against QANTAS, as in their TWO previous go’s at the Airline.

  • Peter

    says:

    QF ground staff are most to blame. They are often reluctant to do their job as not like the QF airport staff on check in who are excellant and show their appteciation to you. The way they they treat your baggage is enough. Most on ground seem determined to delay flights. Hence the decision.

  • Col

    says:

    Here we go again, stand up to them QANTAS, TWU seems to think their role is to putt businesses out of bussines. An uncompetative busienss will lose business and their wont be any employees. TWU are a 100% Slow learners, did you not learn from the mistakes in the role you played in the demise of ANSETT
    Morons !

  • Chris D

    says:

    TWU are actually bemoaning their likely loss of members to support their antiquated industrial relations approach to support not their members, but to support the bloated, unrepresentative union

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