A judge has deemed that it is “unworkable” to expect the 2,000 Qantas ground handlers whose roles were outsourced will be reinstated, and hinted the appeals process could drag on for years.
Judge Michael Lee, who on Friday deemed Qantas’ decision to outsource the roles as partially unlawful due to upcoming enterprise agreement negotiations, made the comment after the TWU requested that Qantas be forced to return all 2,000 employees to their roles, or provide compensation.
“I’m struggling to see how you could deal with this matter … in a way that’s contemplated by the proposed orders,” said Justice Lee on Wednesday.
He noted that it could take years for the matter to be completely resolved, following the airline’s promise to appeal the court’s decision, and questioned the feasibility of leaving all 2,000 people involved in a state of flux for such a period of time.
Justice Lee also stated the process of reinstating workers is further complicated by finalised redundancy payouts, the time that has passed and the fact that many affected workers are likely to have undertaken new jobs.
Industrial relations and employment barrister Matthew Follett, representing Qantas, agreed that it would likely be impractical and difficult to reinstate all outsourced workers, and requested that no decision on reinstatement be made until the court has heard Qantas’ appeal.
“You would need to look at where in the life cycle of employment each individual was, potentially what their state of health was, because if your honour is contemplating compensation for loss of opportunity to earn future earnings then contingencies need to be brought into account,” Follett argued.
“We’re talking about a period of time since employment was lost and the circumstances of individuals in terms of alternative employment, alternative earnings, all of which would have to be brought into account in assessing the true value of compensation.”
Follett also stated that the return of cleaners, ground workers and baggage handlers would also be made difficult in light of the fact that the branch they were employed under, Qantas Ground Services, no longer exists.
Meanwhile, the TWU argued that there is precedent for Qantas to be ordered to reinstate the 2,000 workers in light of last week’s ruling.
Both parties have been ordered to propose how appropriate relief could be made.
The next hearing of the matter is scheduled for 18 August 2021.
Qantas has consistently stated that its decision to outsource the roles of more than 2,000 ground workers in 2020 was purely a commercial decision off the back of the COVID-19 pandemic, and was not made on the basis of upcoming collective bargaining negotiations.
However, the court on Friday deemed on the balance of probabilities, Qantas likely took into consideration the risk those workers would strike during such negotiations in its decision to cull roles, in violation of the Fair Work Act.
In his ruling, Justice 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.”