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Qantas will go to the high court in a last-ditch attempt to avoid paying a mammoth compensation bill to almost 1,700 sacked ground handlers for years of lost work, after the airline failed to overturn a ruling that it illegally outsourced the jobs.
On Wednesday, the full bench of the federal court on Wednesday dismissed Qantas’s appeal of a July 2021 ruling that the airline had acted against protections in the Fair Work Act when it terminated about 1,680 jobs at 10 airports amid the pandemic in November 2020.
In the earlier case the federal court had ruled Qantas’s outsourcing of the workers was in part driven by a desire to avoid industrial action.
Qantas had claimed the outsourcing was a necessary financial measure that could save it $100m annually and reduce future spending on ground handling equipment like tugs and baggage loaders.
The Transport Workers Union had argued the outsourcing decision was motivated by an anti-union sentiment. Many of those sacked were union members and their bargaining agreement was set to expire the following month.
The legal saga has grown in complexity in the months after the 2021 ruling.
Qantas appealed it, while remedy hearings have also taken place between the airline and the TWU, which brought the initial court challenge over the outsourcing decision.
The remedy hearings previously ruled out ordering Qantas to offer the workers their jobs back, in part because of the third-party agreements the airline had since entered into.
The TWU appealed this decision, pushing for reinstatement to be reconsidered. The full bench of the federal court also considered this but it was dismissed in Wednesday’s ruling by justices Mordy Bromberg, Darryl Rangiah and Robert Bromwich.
The legal saga will now return to the remedy hearings, where justice Michael Lee will decide on the compensation for affected workers and financial penalties against Qantas.
But Qantas will now ask that the remedy hearings be paused as it is seeking to appeal Wednesday’s judgment in the high court.
“Today’s judgment does not mean Qantas is required to pay compensation or penalties,” the airline said in a statement.
“Qantas has always said the decision to outsource our ground handling function was based on lawful commercial reasons in response to the unprecedented impact of the Covid crisis.”
Michael Kaine, the national secretary of the TWU, said Wednesday’s ruling reaffirmed what was “the largest finding by a country mile of illegal sacking and outsourcing in Australian corporate history”.
He also called Qantas’s decision to take the matter to the high court “reprehensible”.
“In the face of four federal court judges saying that they acted illegally, instead of showing contrition … they’ve said no, let’s fight our workforce in the high court,” Kaine said.
Kaine would not speculate on what he believed Qantas’s compensation bill could be, but said he wanted the airline to return to the remedy hearings and sit with workers and the union to discuss an “appropriate amount of compensation … for their lost wages, past and future, and compensate them for their pain and suffering”.
Outside the federal court in Sydney, Graham McKay, a former Qantas ground handler, said he had been forced to sell his house in Sydney and move his family outside the city as he had been unable to find work after his job was terminated.
“This is a bittersweet moment … a lot of us have had a lot of losses,” McKay said.
Kaine called on the prime minister, Scott Morrison, to contact the Qantas board and request the airline’s chief executive, Alan Joyce, and chief executive of domestic and international operations, Andrew David, be sacked.
The TWU have accused the Morrison government of failing to hold Qantas to account after the airline received received about $2bn in government Covid wage supports.
“Safety, service and sentiment for the airline have all plummeted over this unlawful decision to outsource,” Kaine said. “There is only one appropriate response from the Qantas board – heads must roll.”