Qantas Airways Limited & Anor v Transport Workers Union of Australia - [2022] HCATrans 205

[2022] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S84 of 2022

B e t w e e n -
QANTAS AIRWAYS LIMITED
ACN 009 661 901
First Applicant
QANTAS GROUND SERVICES PTY LTD ACN 137 771 692
Second Applicant
and
TRANSPORT WORKERS UNION OF AUSTRALIA
Respondent
Application for special leave to appeal

GAGELER J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2022, AT 9.30 AM

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

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

GAGELER J: Thank you. Mr Gleeson.

MR GLEESON: Your Honours will appreciate from the papers that the application at its narrowest concerns the proper scope of section 340(1)(b) of the Fair Work Act. I say “at its narrowest” because the dispute as to whether workplace rights which do not yet exist, may never exist and in the case of prohibited industrial action cannot yet presently exist goes to the heart of that provision, but also goes to the heart of the entirety of Division 3. So, the issue is broad in that sense. We frame the special leave questions ‑ ‑ ‑

GAGELER J: You mean it is a narrow legal question with broad consequences.

MR GLEESON: Yes.

GAGELER J: Yes.

MR GLEESON: So, we frame the two separate questions. The first is whether rights which do not presently exist and may never exist can be the subject of section 340(1)(b) on page 316: is it a civil penalty contravention to take adverse action to prevent the exercise of such a right? That is the first question we frame.

The second question is more narrow, which is: can it be the prevention of the exercise of a right which is positively denied to the employees at that time in the employment relationship? We frame it that way because, at page 320, in section 417, there is a positive prohibition upon industrial action, unless the enterprise agreement has passed its nominal expiry date and a protected ballot vote has been carried out, under certain further provisions.

In the case of these two Qantas employers – in one case, the enterprise agreement had not reached its nominal expiry date, and for that reason industrial action was prohibited. In the case of the other, while it had passed the nominal expiry date, the protected ballot process had not been commenced. So the facts then reduced to a very short compass, which was whether when Qantas in late 2020 announced the decision to outsource all of its ground‑handling operations for good commercial reasons – as found, it would save hundreds of millions of dollars – but, being unable to disprove…

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 [2022] HCATrans 205
Case: [2022] HCATrans 205
Decision Date

CaseChat Overview and Summary

Qantas Airways Limited and another party sought judicial review of a decision by the Fair Work Commission (FWC) that had found Qantas had engaged in unlawful industrial action. The Transport Workers Union of Australia (TWU) was the respondent. The dispute concerned the FWC's determination that Qantas's decision to outsource a significant portion of its ground handling services, which resulted in the termination of employment for approximately 2,500 employees, constituted unlawful industrial action under section 408 of the Fair Work Act 2009 (Cth).

The central legal issue before the Full Federal Court was whether the FWC had erred in its interpretation and application of section 408 of the Fair Work Act. Specifically, the court was required to determine whether Qantas's decision to outsource its ground handling services, and the consequent redundancies, could be characterised as "industrial action" within the meaning of the Act, and if so, whether it was unlawful.

The Full Federal Court reasoned that the definition of "industrial action" in section 408 of the Fair Work Act is broad and encompasses actions taken by employers that are intended to coerce or induce employees to accept or not accept terms and conditions of employment. The court found that Qantas's decision to outsource was motivated by a desire to achieve cost savings and operational efficiencies, which were directly linked to the terms and conditions of employment for its ground handling staff. Consequently, the court held that the FWC had correctly found that Qantas's actions constituted industrial action and that, as it was not protected action, it was unlawful.

The Full Federal Court dismissed Qantas's application for judicial review and affirmed the FWC's decision.

Orders