Qantas Airways Limited & Anor v Transport Workers Union of Australia - [2023] HCATrans 54

[2023] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S153 of 2022

B e t w e e n -
QANTAS AIRWAYS LIMITED ACN 009 661 901
First Appellant
QANTAS GROUND SERVICES PTY LTD ACN 137 771 692
Second Appellant
and
TRANSPORT WORKERS UNION OF AUSTRALIA
Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 MAY 2023, AT 10.00 AM

MR J.T. GLEESON, SC: May it please the Court, I appear with MR T.O. PRINCE, MS N.D. OREB and MS M.F. CARISTO for the appellants. (instructed by Herbert Smith Freehills)

MR N.C. HUTLEY, SC: If your Honours please, I appear with my learned friends MR M. GIBIAN, SC, MR C.J. TRAN and MR P.A. BONCARDO for the respondent. (instructed by Maurice Blackburn Lawyers)

MR T.M. BEGBIE, KC: If the Court pleases, I appear with MS I.M. SEKLER and MS N.A. WOOTTON for the Minister for Employment and Workplace Relations intervening. (instructed by Australian Government Solicitor)

KIEFEL CJ: The Court should deal with the question of the Minister’s intervention. Is there anything further you wish to add to your written submissions, Mr Gleeson?

MR GLEESON: Your Honour, I think we have there sufficiently developed that as the matter of construction there is no intervention as of right, in part because the High Court is not mentioned in the critical provision.

KIEFEL CJ: You have not quite developed so far the question of leave. You say it should not be granted on the basis of leave.

GLEESON J: Yes. No, the only argument against leave is this: what does the Minister seek to add? Firstly, some submissions are about the facts of the case. Your Honours should not permit an intervener to do that. Secondly, there is an extreme submission by Mr Begbie, which he can save for another case, that whenever you see a civil penalty statute and there are constructional choices, you should err on the broadest possible construction. That is contrary to what the Court said in Mammoet and should be rejected. Thirdly, on the key issue in the case, which is the legal architecture, you do not in fact see very much from the Minister.

May it please the Court.

KIEFEL CJ: Mr Begbie.

MR BEGBIE: Your Honours, the first point is the question of statutory construction in section 569(1). As we apprehended, Qantas raises two fundamental points in relation to that. The first is that the provision used the word “court” in a way that impliedly excludes this Court. The second is that because special leave has been granted and because this Court is now hearing an appeal under section 73(ii) of the Constitution, the matter that existed previously and below no longer exists. What exists now is a matter which is concerned solely with the correctness of the Full Court’s decision.

I will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Qantas Airways Limited & Anor v Transport Workers Union of Australia [2023] HCATrans 54
Case: [2023] HCATrans 54
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Qantas Airways Limited and its subsidiary, Qantas Ground Services Pty Ltd (collectively, Qantas), and the Transport Workers Union of Australia (TWU). The core of the dispute concerned the lawfulness of Qantas's decision to outsource its ground handling services, which resulted in the termination of employment for a significant number of its employees. The TWU challenged this decision, alleging it was a sham arrangement designed to prevent employees from exercising their right to engage in industrial action.

The High Court was required to determine whether Qantas's conduct in outsourcing its ground handling services constituted a contravention of section 348(1)(a) of the *Fair Work Act 2009* (Cth). This provision prohibits an employer from taking adverse action against an employee or prospective employee for the purpose of preventing the exercise of a workplace right. The central question was whether Qantas’s genuine commercial reasons for outsourcing were overshadowed by an impermissible purpose of preventing employees from exercising their right to engage in industrial action.

The Court analysed the concept of "purpose" under the *Fair Work Act*, noting that it requires an examination of the employer's subjective intention. While acknowledging that genuine commercial considerations can be a legitimate purpose for business decisions, the Court emphasised that such purposes cannot be used as a pretext to avoid obligations under the Act. The High Court ultimately found that Qantas had not established that its sole or dominant purpose in outsourcing was for genuine commercial reasons, and that the purpose of preventing the exercise of workplace rights was a substantial and operative reason for its decision.

The High Court allowed the appeal, finding that Qantas had contravened section 348(1)(a) of the *Fair Work Act 2009* (Cth). The matter was remitted to the Federal Court of Australia for further proceedings to determine appropriate remedies.

Orders