The heavyweight lawyer who helped win the infamous Waterfront dispute will today file a landmark ‘test case’ against Qantas over its plans to outsource 2,000 ground handling roles.
The TWU has tasked industrial relations specialist 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 hoping to outsource roles.
It comes after Qantas last month rejected a proposal by the TWU to retain the jobs in-house, arguing it simply didn’t save enough money compared with bids from third-party providers.
Qantas’ plans will 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.
“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.”
Qantas is likely to strongly contest the action. The business has been adamant it rejected the TWU’s rival bid because didn’t meet its core objectives, which it cited as reducing the coast of ground handling operations by $100 million and avoiding large spending on equipment.
“Qantas granted three separate extensions to the original deadline for the bid following requests by the TWU, doubling the total period to 12 weeks,” the airline said in a statement previously.
“Their resulting national bid was, by their own admission, ‘theoretical’ with no roadmap of how projected cost savings would be achieved. For instance, the proposal resulted in 1 million surplus labour hours – or around 900 roles – but no details on how to deal with that surplus. It also did not meet the objectives relating to capital expenditure on ground services equipment nor matching the ground handling services (and their cost) to fluctuating levels of demand.
“While proposals from employees at various ports did include detailed plans that would save around $18 million, there remained a significant gap compared to what was offered by third party providers.
“A number of external bidders, some of whom already provide these services at 55 airports across Australia, were able to meet all of the objectives, including reducing annual costs by approximately $103 million.”
The TWU’s national secretary, Michael Kaine, said, “By now Qantas has received well over a billion dollars in public funding to keep it afloat during the pandemic. It has taken this public money and violated our laws, sacking workers and aiming to replace them with outside agencies which pay less.
“The federal government and the Qantas board have refused to hold management to account over this. Workers are taking a stand against a spiteful management which pays itself bloated salaries and bonuses and then sacks workers.”
Australian Aviation first reported that the TWU had enlisted Bornstein in September.
The union said it recruited Bornstein 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.
His clients have included broadcaster Ross Stevenson, publisher Louise Adler, the State of Victoria, Essendon Football Club and writers Marieke Hardy and Clementine Ford.
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.