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Breaking: TWU wins landmark outsourcing case against Qantas

written by Hannah Dowling | July 30, 2021
TWU Michael Kaine 1
The TWU’s national secretary, Michael Kaine

The Transport Workers Union (TWU) has won a historic court battle against Qantas over the dismissal of more than 2,000 ground handlers whose roles were outsourced.

The Federal Court delivered the verdict on Friday morning, and largely found in favour of the union. It means outsourced employees could potentially regain their jobs or receive compensation, though that has yet to be determined.

Both Qantas and Jetstar removed ground handling operations this year at the Australian airports where the work was done in-house, which included Sydney, Melbourne and Brisbane, shifting them to external businesses including Swissport and dnata.

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The TWU hired Waterfront dispute lawyer Josh Bornstein to argue the airline’s actions contravened the Fair Work Act because employees at the new companies are now no longer entitled to terms secured through enterprise agreements. Qantas had consistently denied it has done anything unlawful.

In his ruling, Justice Michael Lee said, “Although I do not think that the intent of the outsourcing decision was to hobble the industrial influence of a perceived ‘militant’ industrial organisation, given the nature of the Union’s membership and its members’ roles, outsourcing ground operations to third party contractors would be an effective way of going about the fulfilment of such an aim.”

However, he also said, “I am reasonably satisfied on the balance of probabilities, that the fact affected employees were members of the Union was not, in itself, a substantial and operative reason for deciding to make the impugned outsourcing decision. That aspect of the Union’s case fails as a consequence.”

Finally, he concluded he was not satisfied that Qantas had proved on the balance of probabilities that its domestic and international chief, Andrew David, did not decide to outsource the ground operations for reasons which included the “Relevant Prohibited Reason”.

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“As will already be obvious, this conclusion reflects my unease as to the state of the evidence on this fact in issue and, in particular, Mr David’s evidence when viewed in the light of all the other evidence to which I have made reference.”

Bornstein called the decision a legal first.

“The Federal Court has found for the first time that a major employer has sacked over 2000 workers because it was seeking to deprive them of the ability to collectively bargain with the company for a new enterprise agreement,” he said.

“It is also the first successful challenge to a major corporate outsourcing exercise in 20 years. We put Qantas’ outsourcing on trial and Qantas lost. Large companies have used outsourcing for decades to prevent employees from being able to collectively bargain with them.

”As a result, employees have lost the ability to obtain proper wage rises. Once Qantas outsourced its workers and sourced them indirectly from labour hire agencies, it did not have to bargain with ground staff again.”

Qantas has yet to respond to the ruling, but has previously said in response that COVID has meant it has had to make major changes in order to survive.

“We recognise that this was a difficult decision that impacted a lot of our people but outsourcing this work to specialist ground handlers who already do this work for us in other cities across the country is not unlawful,” it said in a statement.

Qantas has previously accused the TWU of not telling the truth. In particular, it has rejected accusations that it has transferred ground handling roles to “labour hire firms” and denied it has abused JobKeeper subsidies. It’s also hit back at the central claim that it removed in-house roles to avoid collective bargaining agreements.

The case has been controversial because Qantas forged ahead with outsourcing the roles before the outcome of today’s case. It said it was able to do this because the union didn’t obtain an ‘interlocutory injunction’.

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11 Comments

  • Bevan

    says:

    Just watch now, the TWU will mount a court case for any probable spurious claim, against QANTAS.
    Very surprised at this result, as it impacts EVERY company in this Country.
    Most disappointing, IMHO.

    • Brett

      says:

      Bad for biz hey Bev…fair play has been show and u don’t want to accept the truth……c ya ladr Bev

  • Gary

    says:

    Let the unions destroy QANTAS like they did to Ansett.

    • Brett

      says:

      Gazza, has it ever dawned on u the lives Qantas has decimated with its human relations policies?

  • Brian Beban

    says:

    “Qantas forged ahead with outsourcing the roles before the outcome of today’s case”. They may now regret this as they appear to be up for far more than they could have saved and now have a reluctant workforce who have been adjudged as being unlawfully made redundant.

  • Max

    says:

    Great news for Australian workers. CEO’S on multi million dollar packages need to wake up and realise that they simply can not do what ever they want to. Australian society that is held together by laws, that includes industrial laws.

  • J Mac

    says:

    Wow! I would have thought the outsourcing decision was to cut costs rather than prevent collective bargaining. I don’t get it. Operators have always used ground handling agents. GHA are independent businesses, not labour hire firms. I wonder if this has broader implications for other industries and government.

    I tend to think QF should have got better lawyers. I wonder if they were outsourced. If not they should have been.

    • Warwick

      says:

      You said ‘QF should have gotten better lawyers’.

      You’re obviously unaware the Company has its’ own Legal Department.
      For example, who do you think ratifies the Rules that make up an airfare that you purchase?
      This is just one job that QANTAS Legal does.
      There’re dozens’ of other jobs for it, in such a huge Airline.

  • Stu

    says:

    So its now illegal for a company to cut costs in order to survive. What a screwed up legal system we have!
    Typical unions – destroy the country and anything else they can touch. Do they not understand that if Qantas goes bust far more than 2000 people will lose their jobs? And all of us will suffer.

  • Glenn Mathias

    says:

    The fat lady is in the wings

  • Kenny G

    says:

    Well – about time the courts caught up to QF and its HR department – Qantas has or I should say Had – 24 EBA agreements – When DIXON was in the chair – Ever since his departure it’s been trying to get rid of them each and ever one.
    On the subject of a legal department, it’s like a lot of the other QF departments – outsourced – keep one lawyer to read and pass on the briefs back and forth to the board.
    In the end Joyce has wanted to have a virtual airline – sell tickets on an airline that has few or better still – NO AIRCRAFT – he is getting closer every day especially now the world has COVID –

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