Qantas' pandemic-era outsourcing decision ruled unlawful by High Court

A unanimous High Court judgment handed down on Wednesday upheld two rulings made by the Federal Court, which found the outsourcing of baggage handlers, cleaners and ground staff was unlawful.

Qantas had sought to overturn rulings that it breached the Fair Work Act in outsourcing its ground operations to avoid enterprise bargaining rights, after the Transport Workers' Union took legal action against the carrier.

But the High Court found that taking "adverse action against another person for a substantial and operative reason of preventing the exercise of a workplace right by the other person contravenes (a section of the Act) regardless of whether that other person has the relevant workplace right at the time the adverse action is taken".

"Qantas did not avoid the operation of (the section) in relation to its adverse action by taking the action prior to the existence of the workplace rights the exercise of which Qantas sought to thwart."

Sacked workers inside the courtroom pumped their fists in victory upon hearing the decision.

Outside court, TWU national secretary Michael Kaine said the sackings were the largest unlawful terminations in Australian corporate history.

"They're entitled to still be in their positions and therefore they need to be compensated for that," he told reporters.

"We will seek penalties as well.

"It is important that there is a clear signal sent to employers in the future that this type of conduct should not occur."

Damien Pollard, a sacked worker who had been with Qantas for decades, spoke of the emotional and financial toll.

"The last three years have been horrendous for my colleagues and myself," he said with tears welling in his eyes.

"This is redemption for us today."

The airline, which retrenched workers in 2020, lost billions of dollars during the pandemic, which decimated the aviation sector.

Mr Kaine said Qantas chair Richard Goyder and the board needed to go.

Australian Council of Trade Unions secretary Sally McManus, who attended the judgment, urged parliamentarians to pass Labor's "closing the loopholes" industrial relations legislation, which she said would stop such behaviour at its "source".

Qantas said the decision to outsource the remainder of the airline's ground handling function was made in August 2020, when "borders were closed, lockdowns were in place and no COVID vaccine existed".

"The likelihood of a years' long crisis led Qantas to restructure its business to improve its ability to survive and ultimately recover," the airline said in a statement.

"As we have said from the beginning, we deeply regret the personal impact the outsourcing decision had on all those affected and we sincerely apologise for that.

"A prior decision by the Federal Court has ruled out reinstatement of workers but it will now consider penalties for the breach and compensation for relevant employees, which will factor in redundancy payments already made by Qantas."

The airline posted an underlying profit of almost $2.5 billion for the past financial year.

Australian Associated Press