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The Federal Court has allowed Qantas to use a new argument in the case to determine how much compensation workers fired in the early stages of the pandemic will receive.
The Flying Kangaroo now says the disruption later caused by the Delta strain of COVID-19 would have meant it would have had no choice but to let 1,700 ground handlers go anyway.
Qantas is effectively reducing the amount of time it argues workers would have stayed employed, therefore reducing a potential payout.
The airline originally announced it would outsource the roles in August 2020, and the staff ultimately exited earlier the following year.
However, the TWU repeatedly challenged that decision in the courts, with the High Court eventually ruling the airline breached the Fair Work Act and the former staff were due compensation.
On Monday, though, Qantas argued the rise of the more contagious variant of COVID-19 meant it would have found a way to fire staff in November 2020 or August 2021 because flying conditions changed.
The Delta strain led to much of Australia going back into lockdown for months and state borders closing, grounding the majority of domestic flights nationwide.
Qantas counsel Richard Dalton KC told the hearing – designed to establish what compensation workers would receive – that the new question is whether the decision to outsource “would have been made anyway”.
“But for the [final] decision on 30 November 2020 to outsource the ground handling staff, for reasons including the prescribed reason… would the test case individual continue with their employment?” he said.
Mark Gibian SC, counsel for Transport Workers Union (TWU), said if the court does remove the outsourcing decision, “we say that the employment would have continued and it would have been for Qantas to say that this would have been interrupted”.
Gibian went on to say the affected employees should receive appropriate compensation, whether or not the airline could prove if the test cases would have taken steps to find new employment.
Justice Michael Lee said it would be “a tad unrealistic” for him to proceed on the basis the staff “would still be working there”.
Dalton was unable to finish his submissions on Monday and the matter was adjourned for a further three hours later this month.
Earlier in the day, when the court was determining whether to allow Qantas to reopen the case, Gibian said there would be “profound unfairness” to raise the new timeline after closing submissions.
“The whole of the evidence would have been considered in a different light and one can’t go back,” Gibian said.
Justice Lee said he was cautious about which approach to take, considering he wanted “procedural fairness for both parties”.
“I think it would be a very brave judge who would shut a party out from running an argument,” Justice Lee said.
“I presume you want this case to finish sometime, and why would I do something that isn’t apt to raise an appeal point either way.”
Justice Lee said there was “no compelling argument” as to why he should not allow Qantas to proceed with their argument.
“All such decisions involve a balancing between the parties, but at the end I am required to not only regard the mandates of [the Federal Court Act], but also the interests of justice generally, and I think this approach adequately protects the position of both parties.”
Qantas was granted leave to reopen the case as long as TWU were allowed the opportunity to cross-examine any witnesses.
Gibian said the TWU would not seek to cross-examine.
