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Just three of the 1,700 ground handlers illegally outsourced by Qantas have been granted payouts after a Federal Court judge criticised how the TWU had been running its case.
Justice Michael Lee said the union’s decision not to proceed with a class action meant the remaining ex-employees claims would have to be judged on a case-by-case basis, likely significantly extending their wait.
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The compensation amounts of the three confirmed in the Federal Court also varied wildly, with payments of $30,000, $40,000 and $100,000 awarded.
It comes after the High Court last year upheld a ruling in the Federal Court that the Flying Kangaroo illegally sacked nearly 1,700 workers mid-pandemic. The airline had earlier argued it had no choice but to remove the roles due to the uncertainty of COVID and a potential $100 million a year cost savings the move could bring.
However, in the hours after Justice Michael Lee handed down his compensation judgment, TWU national secretary Michael Kaine said the “vindicated” ground handlers illegally outsourced in early 2021 at 10 major airports deserved reparation “for the hell Qantas put them through”.
“The TWU took on Australia’s biggest corporate bully at a time workers were told they were just a casualty of the pandemic. In reality they were victims of a systemic attempt by Qantas to decimate the pay and conditions of its workforce,” Kaine added.
However, the celebrations have come too early, with Justice Lee making clear he could only identify a figure for three test cases based on their circumstances after the outsourcing. One person received $100,000, another $40,000, and the last $30,000.
The remaining 1,700 ground handlers will have to wait until TWU and Qantas meet in mediation – but even then, there is the possibility the parties could fail to come to a resolution. In that case, Justice Lee said the court would need to hear further submissions.
“Without assigning blame to either party, hopefully some common-sense can prevail, after all the disputation that has taken place, including three separate hearings, six first instance judgments, three appeals (two by Qantas and one by the Union), various notices of contention and interlocutory disputes,” Justice Lee said.
The delay can be partly chalked up to the method TWU ran its case, with Justice Lee making clear the union ignored his urgings to run the case as a class action – with the union as lead applicant – rather than the representative type of proceedings it stuck with.
Justice Lee said it was “somewhat difficult” to reconcile this course with the statutory requirement under the Federal Court Act that each party assists in the determination of disputes “as quickly, inexpensively and efficiently as possible”.
“Apparently, the union is content to rely on the prospect of there being an outbreak of cooperation between the parties in extrapolating my findings … to the broader cohort.
“One hopes they are right because how my findings as to common issues are to bind non-parties and provide any definitive legal certainty is unexplained (given I am deprived of the ability to make orders … as would be the case with a class action),” he added.
Justice Lee went on to add in his judgment that it is “presently opaque” as to how any individualised findings – being the three test cases – could “inform the resolution of the claims by other affected employees absent some form of consensus”.
Any compensation received by the ground handlers will be limited to 12 months after they were outsourced, with Qantas having successfully argued in May that it would have found a way to terminate the staff one way or another by late 2021.
Justice Lee was satisfied it became “even more obvious that the rewards were clear” to Qantas and it would have proceeded with the termination “if the risks were appropriately minimised and managed”.
“Given Qantas’ laser-like determination to focus on cutting costs and the lack of priority it placed on the continuing employment of the affected workers, it is wholly unrealistic to think that outsourcing would never have occurred, and that a decision to do so would not have been made by around the time posited,” Justice Lee said.
“Having regard to the circumstances proved in the evidence … the degrees of probabilities or possibilities are such that absent the contravening conduct I am satisfied that Qantas would have definitely decided to outsource by late 2021.”
Qantas and TWU have until early November to hold a mediation.
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says:On the one hand we, the mere plebs, have to accept what the judges hand down but, we don’t have to agree with the/those judgements because they are based on the law relating to a stated argument at that time rather than the actual reality of the situation. Their Lordships even state that there are/were probably right and proper commercial reasons for the outsourcing in the first place and now they accept that it would have happened in late 2021 anyway. We now have a situation whereby a financial judgement has been handed down in three cases only and one can only wonder how and why the actual variance in penalty was arrived at when the “situation” was a constant for all staff involved and, their payout at that time most likely would have set them up for life. Their Lordships now advise the parties to hold mediation talks which, should have taken place way back when the action in question was planned but then we would have had an ideological difference from the TWU to manage. It concerns me muchly that based on the performance of the TWU in dealings with QF they concentrate on subjectivity rather than the future and wellbeing of the company as a whole in order for it to maintain good order and wellbeing going forward for all involved. Not a good look.