The federal government will join the Transport Workers’ Union’s (TWU) high court fight with Qantas as the airline bids to overturn a ruling that it illegally outsourced 1,700 ground handlers’ jobs.
The workplace relations minister, Tony Burke, filed a notice of appearance on 16 January to intervene in the case, in which Qantas hopes to overturn a full federal court decision exposing it to a mammoth compensation bill for laying off staff at 10 airports in November 2020.
In July 2021 the federal court ruled Qantas’s outsourcing of the workers was in part driven by a desire to avoid industrial action, which is a breach of the Fair Work Act.
Qantas had claimed the outsourcing was a necessary financial measure that could save it $100m annually and reduce future spending on ground handling equipment such as tugs and baggage loaders.
The high court granted Qantas leave to appeal in December, on the grounds that at the time the jobs were outsourced, the workers had no right to take industrial action.
The national secretary of the TWU, Michael Kaine, said the case had wide ramifications.
“Of course this is now all in the hands of the high court to determine, but we are hopeful the [government’s] intervention is to highlight that the Qantas position, if upheld, would seriously undermine the protective intention of the laws.”
The chair of the Senate’s employment legislation committee and a former TWU national secretary, Labor senator Tony Sheldon, said the government had an obligation to stand by its interpretation of the act.
“This is a matter that will affect many Australians into the future,” he said.
“The act has, in my view, the intent that workers’ interests will be protected, and that in circumstances such as this, after two court findings in their favour, they can get their jobs back … that there is a remedy.”
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Sheldon blamed the previous Coalition government for providing $2bn of subsidies to Qantas during the pandemic “without any obligations” on the airline, allowing it to outsource jobs.
“We’ve seen the consequences for Qantas’s performance,” he said.
In its submissions filed on Friday, Qantas argued that its ground staff were prohibited from taking protected industrial action until their existing pay deal expired on 31 December 2020, a month after the decision to outsource their jobs.
Qantas said it should not be penalised “for taking adverse action to prevent an employee acquiring future rights, the exercise of which at the time of the adverse action would have been unlawful”.
The law “simply does not extend so far as to protect a person from adverse action in respect of rights that they do not presently have”, it said.
Qantas said it had done no more than exercise an employer’s right to “bring the employment relationship to an end” rather than allow it to continue until the law “might confer on the employee greater rights”.
In December, Kaine accused Qantas of “dragging out a costly legal battle rather than reinstate or compensate the experienced workers”.
“Illegally sacking 1,700 workers in one fell swoop to avoid enterprise bargaining rights is unprecedented in Australia,” he said.
Kaine said that “standards in aviation will continue to fall off a cliff if we allow excessive bonuses to be tied to the degradation of secure jobs and decent wages and conditions.”
In a statement in December, Qantas said it had always maintained “the decision to outsource our ground handling function was based on lawful commercial reasons in response to the unprecedented impact of the Covid crisis”.
Since the easing of Covid travel restrictions, airlines have struggled with high demand for flights, and workforce shortages.
Qantas has been hit by consumer complaints about cancelled flights and delays of up to three months returning lost luggage.
Unions have stepped up their rhetoric against the airline after a string of incidents including an emergency landing in Azerbaijan in December and a mayday call from an Auckland to Sydney flight in January.
In December, the government passed its first major industrial relations bill, despite warnings from Qantas that multi-employer bargaining and other changes could force it to cut marginal routes.
In November, Burke told the National Press Club that Labor had engaged in “direct negotiation” with Qantas over the bill.
“I have to say the Qantas position was don’t change a single law, and that was never an option for the government,” he said.
“I don’t accept the argument that if you do anything to get wages moving for a company like Qantas, that somehow everything is in jeopardy.
“If you look at the current laws, it’s hard to find many companies that have had more different ways of working around the current laws than Qantas has.”
