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TWU lawyer says axed Qantas workers can return despite judge’s comment

written by Hannah Dowling | August 10, 2021
TWU lawyer Josh Borstein at the Lawyers Weekly awards (Momentum)

The TWU will continue to push the court to order the reinstatement of 2,000 Qantas ground workers who had their roles outsourced last year, the union’s lawyer told Australian Aviation.

It comes after the court ruled largely in favour of the union, and claimed that Qantas’ decision to outsource its ground services workers in 2020 was done so in partial violation of the Fair Work Act.

It also comes as the judge presiding over the case, Justice Michael Lee, said last week he sees it as largely “unworkable” to expect those roles could be reinstated, and hinted the appeals process could drag on for years.

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Despite this, TWU lawyer Josh Borstein said that in the past, similar cases had resulted in workers being reinstated to the company.

“Under the legislation that we’re dealing with the court has very broad powers to remedy breaches, so we will be asking the court to use those broad powers to encourage Qantas to maximise reinstatement for the employees,” Bornstein explained.

Qantas has previously stated in court that reinstatement would be nearly impossible as it has already gotten rid of its Qantas Ground Services unit, however, Bornstein said the process “doesn’t need to be all that complicated”.

“We know that Qantas is opposed to reinstatement, which might make it less straightforward than it otherwise would be if the airline was co-operating with the union over reinstatement,” he added, however remained confident that the union could successfully persuade the court to make Qantas bring the affected workers back on.

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The Waterfront lawyer said he agreed that Qantas did have the power to drag out the process by remaining uncompromising on reinstatement, however given the number of people involved, the court could push to “fast track” the case.

“If Qantas was co-operative, this whole thing could be over quite quickly, however if they want to drag it out, the court might consider the amount of people involved.”

Bornstein noted that despite stating multiple times that it would appeal the court’s decision, Qantas is yet to submit its appeal.

“They haven’t yet, though they’ve certainly made a lot of noise about pursuing appeals,” he said.

“We were expecting them to pursue their appeal rights if we did win, so it hasn’t shocked us, but they are yet to submit that appeal.”

The TWU and Qantas will return to court on 18 August, where the union will ask the court for permission to gather evidence on exactly how many workers wish to be reinstated to the airline.

Last year, the union hired industrial relations lawyer Bornstein, who helped win the infamous Waterfront dispute, to challenge Qantas’ proposal to outsource ground-handling operations.

Bornstein has long said that winning the TWU outsourcing case against Qantas is a legal first.

“This case is significant because it’s the first time a court has found in favor of a claim under that particular part of the Fair Work Act,” Bornstein explained.

“The court found that one of the reasons that Qantas sacked those employees was in order to prevent those employees from being able to bargain for further agreement and take protected action as a part of the collective bargaining process.

“So it’s the first time that I’m aware of that this particular part of the Act which protects the rights of employees to take future protective action has been found to have been breached by an employer.

“It’s also the first major outsourcing in about 20 years to have been found to to breach the Fair Work Act.”

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8 Comments

  • Warwick

    says:

    Bornstein can say what he likes, but there’s always the chance that the QANTAS appeal could succeed.

    The Judge in the court case has said what he thinks, & his law knowledge would be the greater than the TWU lawyer’s.

    So we’ll wait upon the decision of the Appeal Court, down the track.

  • Rod Pickin

    says:

    I can assure any TWU member/advocate, (from serious direct involvement in this arena) that the QF decision to outsource its ground handling activities would not have been for any other reason than a cost/benefit analysis in support of the bottom line operating performance. The identification of another or other supposed reasons is purely in the eyes of those who have a contrary interest and who do not have to report up to board level as a result of those differing interests creating adverse operating financial results. I would be interested in knowing/hoping that all the effected workers have been picked up, if they wanted so, by the remaining handling companies and I hope that they haven’t spent all the redundancy monies yet.

  • John Phillips

    says:

    Nonsense from Bornstein, and a completely unworkable solution.

  • Mikalee

    says:

    A problem will arise in that I imagine many will have spent their redundancy payment and that will be needed to be paid back as part of any resumption of employment. I wonder if the TWU advised its members to “put the dollars aside and await the court case as you will have to pay it back if we are successful.”

  • Kenneth

    says:

    Just wondering, but couldn’t Qantas just have said, we will outsource ground handling, but only use companies that allow their employees to be member of a union, and thereby have legal rights for the legal bargaining process. That way TWU can’t use that argument against Qantas in court, Qantas won’t have to bargain directly with the employees, and the workers are keeping their work rights hmm 🤔
    If workers then decide on a work strike, due to bargaining issues, it won’t only affect Qantas, but every airline they operate for. So more airlines to put pressure on the company to get the issues sorted, and hopefully a better chance for the workers to get what they are asking for?
    Not a legal expert, and not trying to take anyone’s side in this case.

  • Paul DeMott

    says:

    Unless there is good faith on both sides to pursue reinstatement is pointless.

  • Noel

    says:

    Is it possible? Absolutely and it would take years to eventuate. Probability ? Very doubtful.

  • Leonardo Di Cappuccino

    says:

    Qantas should give compensation to the staff who were made redundant, and move on. Otherwise they could end up spending a lot more money if they continue to drag out the process. In addition, re-employment will not happen 99% and pretty sure it wouldn’t be an easy task. Qantas plan to outsource their services was created 10+ years ago. However, as you know, Mr. Joyce is loaded with ego and money, there is a chance of him pushing TWU to the limits until they run out of money. TWU should consider buying one lemon cream pie just in case.

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