Transport Workers' Union of Australia v Qantas Airways Limited (No 4) - [2021] FCA 1602

FEDERAL COURT OF AUSTRALIA
Transport Workers’ Union of Australia v Qantas Airways Limited (No 4) [2021] FCA 1602

File number: NSD 1309 of 2020

Judgment of: LEE J

Date of judgment: 17 December 2021

Catchwords:
EMPLOYMENT LAW – adverse action – decision of Qantas to outsource ground handling operations at 10 Australian airports in the midst of the COVID-19 pandemic – outsourcing found to have been for a prohibited reason contravening the Fair Work Act 2009 (Cth) (FWA) – form of relief – separate question as to whether “global” reinstatement should be ordered – consideration of the relevant principles – whether there is a prima facie entitlement to reinstatement under s 545 of the FWA – need to determine what relief is “appropriate” in the circumstances of the particular case – the importance of work as a form of continuing participation in society – the statutory purpose to preserve collective industrial rights – where outsourced employees cannot be reinstated without re-creation of a ground handling operation involving significant cost and delay – where Qantas will immediately retrench the workers again when it perceives it can lawfully do so – where ordering reinstatement would involve continuing supervision by the Court – reinstatement not the appropriate remedy in all the circumstances

PRACTICE AND PROCEDURE – observations on the representative capacity of the Union – where no fiduciary relationships exists – observations as to how and whether third parties are bound by a judgment obtained by a litigation “representative”

Legislation:
Acts Interpretation Act 1901 (Cth) s 33(2A)

Conciliation and Arbitration Act 1904 (Cth) ss 5(1), 5(5)

Evidence Act 1995 (Cth) ss 55, 56, 135, 140(2), 191

Fair Work (Registered Organisations) Act 2009 (Cth) s 27

Fair Work Act 2009 (Cth) ss 12, 233, 293, 334, 336(1), 340, 346, 381, 390, 392, 502, 539(2), 540, 544, 545, 546

Federal Court of Australia Act 1976 (Cth) ss 33ZB, 37P(2), Pt IVA

Federal Court Rules 2011 (Cth) rr 20.14, 30.01

Cases cited:
Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 81 ALR 213

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272

Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662; (2005) 147 IR 35

Bowling v General Motors Holdens Ltd (1980) 3 ALR 297

Carter v Hyde (1923) 33 CLR 115

Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661; (2004) 142 FCR 296

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bluestar Pacific Pty Limited [2009] FCA 726

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; (2020) 282 FCR 1

Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 2) [2020] FCA 1215

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218; (2012) 228 IR 195

Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088; (2015) 253 IR 391

Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41

Independent Education Union v Geelong Grammar School [2000] FCA 557

Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716

Kerrin v Leighton Contractors Pty Ltd (1986) 16 IR 40

News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410

Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265

Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340

Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18

Qantas Airways Limited v Transport Workers’ Union of Australia [2021] FCA 1136

Quinn v Overland [2010] FCA 799; (2010) 199 IR 40

R v Dunlop Rubber Australia Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71

Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2015) 327 ALR 460

Sutherland v Hills Industries Ltd (unreported, Keely J, 22 September 1982)

Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507

Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244

Transport Workers’ Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012; (2021) 308 IR 333

Transport Workers’ Union of Australia v Qantas Airways Limited (No 3) [2021] FCA 1339

Websdale v S & J D Investments Pty Ltd (1991) 24 NSWLR 573

Survey Evidence Practice Note (GPN-SURV) [3.2], [4.5]
Kolstad I, “Why Firms Should Not Always Maximise Profits” (2007) 76 Journal of Business Ethics (2007) 137

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 163

Date of hearing: 13 – 17 December 2021

Counsel for the Applicant: Mr M Gibian SC with Mr P Boncardo

Solicitor for the Applicant: Maurice Blackburn

Counsel for the Respondents: Mr R Dalton QC with Mr M Follett and Mr N Burmeister

Solicitor for the Respondents: Herbert Smith Freehills

ORDERS

NSD 1309 of 2020

BETWEEN:
TRANSPORT WORKERS UNION OF AUSTRALIA

Applicant

AND:
QANTAS AIRWAYS LIMITED ACN 009 661 901

First Respondent

QANTAS GROUND SERVICES PTY LTD

Second Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

17 DECEMBER 2021

THE COURT ORDERS THAT:
1.The applicant’s claim for relief by way of orders for general reinstatement of affected employees (as identified in the Points of Claim document filed on 25 August 2021 at prayers [1]–[5]) is dismissed.
2.The balance of the proceedings be adjourned for a case management hearing on a date to be fixed after the determination by the Full Court of the application for leave to appeal (and if leave be granted, the appeal) in proceeding NSD 927 of 2021.

3.Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and r 36.03 of the Federal Court Rules 2011 (Cth), the applicant be given leave to appeal order 1 above, subject to any notice of appeal being filed, served and provided by email to the Associate to Justice Perram on or before 4pm on 7 January 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)
LEE J:
A INTRODUCTION

These reasons assume a familiarity with my two judgments as to liability in relation to this dispute: Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (principal judgment or PJ) and Transport Workers’ Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012; (2021) 308 IR 333 (declaratory judgment or DJ).
This judgment deals with part of the relief sought by the applicant (Union). Over the opposition of the first respondent (Qantas), on 1 October 2021, I made an order that pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth) (FCR) and s 37P(2) of the Federal Court of Australia Act 1976 (Cth) (FCAA), the question of whether the Union is entitled to relief by way of orders for general reinstatement of those of the affected employees who were retrenched (outsourced employees) (as identified in the Points of Claim document filed on 25 August 2021 at prayers [1]–[5]) be determined separately and prior to any other claim for relief (Reinstatement Hearing). The balance of relief sought by the Union (relating to compensation and pecuniary penalties) was deferred.
I explained the reasons for taking this course in Transport Workers’ Union of Australia v Qantas Airways Limited (No 3) [2021] FCA 1339. In short, the opposition of Qantas reflected its desire to seek a deferral of consideration of any questions as to relief until after the Full Court has heard and determined an application for leave to appeal (and if leave be granted, an appeal), listed to be heard on 24 and 25 February 2022. The delay and deferral proposed by Qantas was not only rejected by me in making case management orders, but also by Perram J who, in rejecting an application for a stay of this proceeding, accepted in Qantas Airways Limited v Transport Workers’ Union of Australia [2021] FCA 1136 (at [9]) that:
… any delay in the trial of the reinstatement aspect of the case will be prejudicial to the [Union]. There is a real risk that the relief to which it will be entitled will be imperilled the longer that it takes to determine the question of reinstatement.
After hearing full argument, I have concluded it is appropriate to determine the issue of the entitlement to the “global” reinstatement relief sought and pressed by the Union and, notwithstanding the detailed submissions made on behalf of the parties, to deliver judgment immediately. In addition to not imperilling this aspect of the relief sought by delaying adjudication, this course is appropriate for four further reasons.
First, we are deep into Advent and it is in the interests of all persons affected by the relief sought in this case to have clarity as to their position prior to the imminent long Court vacation. Leaving aside the consequences for the parties, the result has potentially significant consequences for the 1683 outsourced employees and their families; particularly those who earnestly desire a return to work. I have interrupted a part-heard matter which runs to Christmas Eve to hear this matter, and unless I deliver judgment immediately it will not be delivered prior to the end of the year.
Secondly, the delivery of judgment now will provide the opportunity for the disappointed party to seek to have any appeal from the orders I will now make, determined at the same time as the current application for leave to appeal. Needless to say, it is ultimately a matter for the Full Court as to whether or not it wishes to determine the application for leave to appeal and any appeal from the primary order made at this Reinstatement Hearing at the same time as the appeal in respect of liability; but a speedy delivery of judgment on the reinstatement relief preserves this option for the Full Court.
Thirdly, I have had the benefit of detailed and skilled written submissions served in advance of the hearing by each party as to the law, which has allowed me, during the hearing, to focus on the evidence adduced and the real issues that emerged at the Reinstatement Hearing.
Fourthly, following extensive oral closing submissions and a short adjournment, I have now reached a clear view as to the merits of the global restatement relief sought by the Union, and the outcome is not attended by doubt.
I propose to divide the balance of these reasons into the following headings:
·B        THE UNION, STANDING AND CONSEQUENCES
·C        FACTUAL FINDINGS
·D        THE APPLICABLE LAW
·E         THE PROCEDURAL HISTORY
·F         THE UNION’S CONTENTIONS
·G        CONSIDERATION
·H        CONCLUSION AND ORDERS
As can be seen, prior to coming to the relevant facts, it is useful to say something about the basis upon which relief can, and is, being sought by the Union. In maintaining its claim, the Union is acting in what has sometimes been described as a “representative capacity” but, as I will explain, this shorthand description tends to obscure the precise role it is performing in seeking relief, including the reinstatement relief, and the legal consequences for outsourced employees of the grant or refusal of that relief.
B THE UNION, STANDING AND CONSEQUENCES
Section 539(2) of the Fair Work Act 2009 (Cth) (FWA) identifies persons who may apply for orders in relation to contraventions of specified provisions. Item 11 of s 539(2) deals with contraventions of Part 3-1 of the FWA, including contraventions of s 340(1). An “industrial association” has standing to seek relief in relation to contraventions of s 340(1). The Union, of course, is an “industrial association” as that expression is defined in s 12 of the FWA.
The entitlement to make an application is, however, subject to ss 540 and 544 of the FWA. The latter provision imposes a time limitation and the former, by s 540(6), imposes a pre-condition on the ability of an industrial association to apply for orders under Div 2 of Pt 4-1, being that an industrial association may apply for relief in relation to a contravention of a civil remedy provision only if one or other of two preconditions are established. These are, relevantly, that: (a) the industrial association is affected by the contravention; or (b) the contravention relates to a person, and the person is affected by the contravention and the industrial association is entitled to represent the industrial interests of the person.
It is common ground that the present proceeding was brought within time and, at the very least, the Union is entitled to represent the industrial interests of persons affected by Qantas’ contravention.
Given that as at 31 December 2020, only 716 of the original 1820 affected employees (of which 1683 were outsourced employees) were members of the Union, it is worth noting that the entitlement to represent the industrial interests of a person does not require that the person be a member of the relevant industrial association. The fact that a person is eligible for membership of an industrial association in accordance with its eligibility rules is sufficient to make the industrial association entitled to represent the industrial interests of the person: see Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456 (at 461 [1], 467–469 [25]–[28] and 472 [36] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ). It is common ground the Union has an eligibility to seek relief on behalf of all outsourced employees (irrespective as to whether they were, or are, members of the Union).
But the question of eligibility to bring an application is not the same thing as identifying the capacity in which the application is brought. The Union is seeking relief of a particular type. That relief was relevantly framed in the amended originating application as a “claim” by the Union that Qantas do certain things including reinstate outsourced employees (prayer 2A) and a “claim” by the Union for “[o]rders for compensation for economic and non-economic loss” (prayer 4). More detailed relief of a similar nature is now specified in the Points of Claim filed on 25 August 2021. The Union’s contention is that these proposed orders, if made, would promote the purposes of the FWA by facilitating compliance with the law, including the statutory norm proven to have been breached. In this respect, seeking the relief serves a perceived public purpose. But the relief (if made or refused) would also directly affect the interests of strangers to the proceeding, that is, the outsourced employees. Hence the forensic decision as to what relief is sought can affect the interests of the outsourced employees. This can be seen most obviously by the fact that the Union sought an order (initially only if reinstatement is refused), that Qantas pay to third parties an amount of money said to represent compensation for loss suffered by those third parties.
At first glance, it might be thought that to the extent it is acting to progress such claims (including compensation for loss suffered by the third parties), the Union is performing a representative function, quite similar to other representative functions known to the law, being those described by the High Court in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 (at 524 [40] per French CJ, Bell, Gageler and Keane JJ):
… representation by an agent, representation by a trustee, representation by a tutor or a guardian, and representation by another person under rules of court which permit representation of numerous persons who have the same interest in a proceeding. To those traditional forms of representation can be added representation by a representative party in a modern class action.
But any such comparison needs to be carefully examined and not decontextualised.
The Union is registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act). It is a body corporate, separate and distinct from its members: s 27. It acts in an independent capacity: R v Dunlop Rubber Australia Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71 (at 81 per Dixon CJ, Webb, Fullager, Kitto and Taylor JJ). It is given standing in order to allow it to pursue its legitimate industrial objectives.
As French CJ, Bell, Gageler and Keane JJ noted in Tomlinson (at 524 [40]), each of the “traditional” forms of litigation representation:
… is typically the subject of fiduciary duties imposed on the representing party or of procedures overseen by the court (of which opt-in or opt-out procedures and approval of settlements in representative or class actions are examples), or of both, which guard against collateral risks of representation, including the risk to a represented person of the detriment of an estoppel operating in a subsequent proceeding outweighing the benefit to that person of participating in the current proceeding.
There is no precise or comprehensive definition of the circumstances in which a person is considered a fiduciary in their relations with another, but a fiduciary relationship is, of course, characterised by trust and confidence, and a person will be in a fiduciary relationship with another when and insofar as that person has undertaken to perform such a function for, or has assumed such a responsibility to, another as would thereby reasonably entitle that other person to expect that they will act in the other person’s interest to the exclusion of their own interest: see Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 (at 96–97 per Mason J); News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 (at 538–541 per Lockhart, von Doussa and Sackville JJ). It is common ground in this case that the Union is entitled to act on its own account and in its own interests (subject to the requirements of the FWRO Act) and is not acting in the conduct of this litigation as a fiduciary of any of its members or the outsourced employees more generally.
But even absent characterisation as a fiduciary, the question of whether some substantive obligation exists to the extent it is dealing with the interests of third parties by the Union, which has carriage of litigation directly affecting the interests of third parties (and whose interests it says it represents) does not appear to me to have a straightforward answer, notwithstanding the joint position adopted by the parties. It strikes me as intuitively odd that any species of litigation representative, even one with its own distinct interests, is entirely at liberty to pursue its own interests in litigation, even if those interests directly conflict with the interests of third parties in the same litigation (which in this case, as we know, includes persons who have no legal relationship with it). Whether equity could have some role to play in this regard is unnecessary to consider for present purposes. It suffices to note that the complexity in identifying the metes and bounds of any such obligation is evident in the admittedly quite different context of the role and the content of duties of a representative in Chancery representative proceedings, or in class actions under Pt IVA of the FCAA (or its cognates).

It is worth noting, however, that one aspect of the representative nature of this case may be relevant: that is, how and if the outsourced employees will be bound by any determination in this proceeding as to their entitlements. In this respect, reliance was placed by both parties on Tomlinson. In that case, the Fair Work Ombudsman had brought a case in this Court alleging that a company had failed to pay Mr Tomlinson and other employees amounts owing upon termination of employment. An issue determined in the proceeding was whether the company was the employer of Mr Tomlinson and the other employees. That issue was determined adversely to the company and orders were made requiring it to pay specified amounts to Mr Tomlinson and other employees: at 512–513 [8]–[9] per French CJ, Bell, Gageler and Keane JJ. Mr Tomlinson subsequently brought a personal injury claim on the basis that the company was not his employer and he was employed by another entity: at 513–514 [10] per French CJ, Bell, Gageler and Keane JJ). The company contended that Mr Tomlinson was estopped from doing so by reason of the judgment of the Federal Court. The High Court rejected the argument. In bringing the Federal Court proceeding, the Fair Work Ombudsman was acting pursuant to a statutory power to commence proceedings to enforce the FWA and it did not represent the legal interests of Mr Tomlinson in a sense which gives rise to an estoppel (by seeking orders that the company pay Mr Tomlinson and other employees amounts which the company had failed to pay): at 525–526 [44]–[47] per French CJ, Bell, Gageler and Keane JJ, and at 544 [114] per Nettle J.
Neither party contends that the outsourced employees are privies of the Union in any relevant respect. Irrespective of the existence and content of any obligations of Qantas to the outsourced employees in advancing the claims for relief, no party suggests that the affected third parties, as non-parties to the litigation, are bound at law or in equity (such as would be the case by a s 33ZB “statutory estoppel” in a class action under Pt IVA of the FCAA or in equity in a Chancery representative proceeding). This may have significance at a later stage of this, or other, litigation. For reasons I will explain, it may also have relevance in a case where, because of some disentitling conduct by the “representative”, discretionary relief should be denied on the application of the “representative”, and yet the consequences of the disentitling conduct should not be visited on the persons represented. As will become evident, this is not a far-fetched possibility (but one that ultimately does not need to be resolved in this case, for reasons I will explain).
C FACTUAL FINDINGS
C.1 Background and Sources of Findings
Given: (a) the considerable volume of unnecessary evidence filed on the liability hearing by both parties and; (b) the complaint by Qantas (which I considered without foundation) that there was insufficient time for it to prepare evidence for a hearing this year, I required the legal representatives to attempt to agree upon all relevant non-contentious facts prior to any time being spent preparing evidence that would be the subject of dispute. To ensure that this process worked efficiently, I made the following three orders:
2.… the legal representatives for the parties at the Reinstatement Hearing are to confer, under the direction and supervision of a Senior Judicial Registrar of the Court, and attempt to agree on and produce a document entitled “Agreed Facts” (Agreed Facts) which, in narrative form, identifies relevant facts in respect of which there is agreement or no contest between the parties (Conferral).
3.The legal representatives for the parties participating in the Conferral are to do so in good faith and consistently with their obligations under Pt VB of the Act (including by assisting in facilitating the narrowing of issues by providing informal production of documents requested for a legitimate purpose).
4.The Conferral will continue until the Senior Judicial Registrar forms the view that it should be concluded …
A statement of agreed facts was prepared and a final version provided to the Court (and was admitted as Exhibit A on the Reinstatement Hearing) with each fact being an “agreed fact” within the meaning s 191 of the Evidence Act 1995 (Cth) (EA).
The document is a useful one and, subject to one matter to which I will make reference below as to the effect of those agreed facts, the parties and those that advise them should be commended for the constructive way they engaged in the conferral and drafting process, which was consistent with their duties to narrow the scope of the factual issues required to be the subject of affidavit evidence or the tender of documents.
I will divide the balance of this section of my reasons into three parts: first, I will provide a broad summary of the facts found in accordance with the agreement of the parties; secondly, I will detail my approach to one aspect of the Union’s evidence; and thirdly, I will set out additional factual findings I make on the basis of the evidence admitted. To these facts must, of course, be added the facts found in my previous judgments (to the extent that they are relevant). In this last regard, unsurprisingly given the nature of the relationship between Qantas and the second respondent (QGS), it was not suggested that QGS ought not to be bound by the findings made prior to it being joined as a party.
C.2 Relevant Agreed Facts
The agreed facts are set out comprehensively and in granular detail in the appendix to these reasons, which I find for the purposes of this proceeding. Drawing upon those detailed facts (and adopting the definitions in the annexure), it is worth emphasising the following nine matters:
(1)Qantas Airports Ground Operations was a so-called “business function” within Qantas and provided ground handling services. Work performed on Qantas aeroplanes represented around 73% of ground handling activity within Qantas Airports Ground Operations.
(2)At the time of the outsourcing decision, by outsourcing, Qantas estimated it could eventually achieve over $100m per annum in savings when compared to pre-COVID Ground Operations.
(3)If reinstatement relief was obtained as sought, Qantas would need to re-create substantially its Qantas Airports Ground Operations business, a course that would include: (a) capital expenditure; (b) buying back ground services equipment (GSE); (c) making lease arrangements; and (d) recruiting up to 50 ground operations executive managers across 10 ports. Further, a new labour model may also need to be designed to implement operational processes to support an integrated work pattern involving third party ground handling companies (contractors) and QGS/Qantas employees performing the same work.
(4)Qantas has entered into contracts with the contractors for the provision of ground handling services (Ramp and Baggage, and Fleet Presentation) previously performed by the affected employees at each of the Airports, but if those contracts were terminated in accordance with their terms, the contractors will offer Qantas the option to purchase the relevant GSE.
(5)Qantas made an unprecedented $1.826 billion loss before tax for FY2021 and has reported approximately $5 billion in cumulative statutory losses for FY2020 and FY2021 (which is expected to grow).
(6)Qantas has raised in excess of $2.5b in debt and $1.4b in equity, and an additional $0.5b in debt has been announced through an unsecured bond placement. This funding has been necessary to support the Qantas Group’s operations through the COVID-19 pandemic, but has placed considerable pressure on its balance sheet position.
(7)Flying activity has dramatically decreased and there have been ongoing stand downs of employees in 2021 due to the ongoing impacts of the pandemic. Given the reduced flying activity and extent of the stand downs, had Qantas not decided to outsource Ground Operations in November 2020, Qantas and QGS would have stood down large numbers of their ramp, baggage and fleet employees in 2021.
(8)Since the outsourcing of Ground Operations was implemented, Qantas has not been required to make any capital expenditure in respect of GSE for the Qantas Airports business.
(9)Qantas continues to face serious financial and operational difficulties as a result of the ongoing pandemic, and associated uncertainty about the level of future flying activity.
C.3 The Survey Evidence
The Union tendered what was described as a survey “Summary Report” prepared by Mr Shane Compton who is a Senior Research Director, Quantitative Consulting Team at the Social Research Centre. For reasons I will now explain, this evidence is problematical.
The solicitors for the Union, Maurice Blackburn, provided the Social Research Centre with a list of survey questions which were reviewed for the purposes of administering an online survey. Following some revisions, the survey was ultimately administered to what were identified as 1806 “in-scope workers”.
The evidence suggests that out of 1531 survey responses able to be used, a total of 77.7% of affected employees supposedly indicated that they wished to be reinstated to their former position if the Court was to make an order for reinstatement.
But this figure cannot be accepted uncritically for several reasons. The first is really a question simply going to weight and, in and of itself, is not of great consequence. For reasons explained below, the alternative of a compensation order in a particular amount or a formula by which it could be calculated, was not able to be presented to the survey recipients. This was a result of the forensic choice of the Union seeking a general reinstatement order and (understandably) pressing for a hearing on this primary relief not being deferred until compensation could be estimated accurately following the hearing of a number of “test” cases on compensation.
To understand the second reason to doubt the accuracy of the survey, it is necessary to revisit, in some detail, the circumstances in which the survey evidence was obtained, and the oral evidence of Mr Compton.
Shortly after the delivery of the principal judgment, on 18 August 2021, a case management hearing was conducted during which extensive submissions were made about the scope of a hearing to determine an appropriate remedy. During the course of that exchange (at T16.1–9), Mr Gibian SC, appearing on behalf of the Union, foreshadowed that the Union was proposing to conduct a survey in order to ascertain the proportion of employees who wished to take up reinstatement. I immediately responded that it was “fundamental” if a survey was to ask individuals to make an election between alternative remedies, that the employees understand clearly the nature of their rights and noted the difficulty of that being assessed “in a vacuum”, that is, in advance of an idea of what compensation would likely be awarded or how it would be calculated. I noted that an employee may agree that reinstatement is a good idea in the abstract, but it would be difficult for the employee to understand “the counterfactual”, that is, “if [the employee] was to obtain a compensatory remedy?”: T16.11–20. At that time, it was clear that the Union was seeking reinstatement as the primary remedy and was only seeking an order for compensation on behalf of the outsourced employees in the event that the reinstatement order was refused.
Following that case management hearing, I ordered that the Union file a “Points of Claim” document, accompanied by a document which, in the light of my comments, set out how the Union considered that any relief hearing should take place, including whether individual claims of persons alleged to have suffered loss should be determined at the same time as the global reinstatement order was sought.
Such a document was filed, and a global reinstatement order was pressed as the primary relief and the Union contended that such a hearing should take place as soon as practicable. The Union also foreshadowed that at such a hearing it would lead evidence in support of reinstatement, including a survey of the outsourced employees. At the case management hearing that occurred on 8 September 2021, I directed the attention of those acting for the Union to the Survey Evidence Practice Note (GPN-SURV) (Survey Practice Note), noting that it would be appropriate for any survey to be conducted by somebody who was independent of the parties to preserve the integrity of the survey process, and that any information and instructions given to the survey participants or any person who will administer the survey instrument, occurs as contemplated by [3.2] of the Survey Practice Note: see T27.11–21. I further noted that if the Union intended to seek to adduce survey evidence, it ought to proceed in the orthodox way, which would mean that it is more likely to be admissible and that “[there is] a reason why the [Survey Practice Note] has developed this procedure, to preserve the integrity of any survey evidence”: T27.28–29.
On 22 September 2021, a Survey Notice was served by Maurice Blackburn, attaching, as Annexure A, a copy of the proposed instrument. On 29 September 2021, Qantas provided a Responding Notice which noted asserted deficiencies in the principal survey question proposed, including that it was unanchored to any point in time and that:
… there is no meaningful context and information for [outsourced employees] to weigh up the value to them of participating in the Reinstatement Option as opposed to taking up the alternative remedy of compensation. As Qantas has stated on numerous previous occasions, at this early stage where there is no relevant information as to the amount of the Compensation Option ([outsourced employees] are more likely interested in the likely amount for compensation, rather than a theoretical (and lawyered) formula as to how that amount may be calculated), how can any [outsourced employee] express any preference which has any probative value?
In any event, what then appears to have happened is that the solicitors for the Union had a series of communications with Mr Compton, including as to the proposed content of the survey design. The involvement of the solicitors, in part, went beyond the role contemplated by the Survey Practice Note at [4.5]. It would have been better, of course, to provide the Survey Notice and the Responding Notice to an independent survey administrator and to allow him to design and administer the survey. This is not a case where there was ever any doubt as to what was the relevant question.
More specifically, when Mr Compton gave evidence, it became apparent that:
(1)He considered his client was the solicitors for the Union, Maurice Blackburn, and the Court was “irrelevant” in “terms of the contract and in terms of who [he] needed to get approvals from for the final version of the questionnaire, the sign-off on various pieces [of work]” and the client who would be “signing off or approving” the conduct of his task: see T187.10–26.
(2)He was given a draft survey instrument by the solicitors for the Union; it comprised a “Part A – Explanatory Memorandum” and a “Part B – Survey”. He did not look at Part A in detail (nor did he comment upon it or edit it) because he thought that this information related to legal matters that had been set by the Court. Part A was presented to him as information the survey recipients needed to understand to complete the survey: see T163.40–T166.5.
(3)Part A went into the survey material in the same form as it was provided to him and he understood it was important that the survey recipients read it. But notwithstanding this, its importance, and the fact that the survey recipients were asked to read the explanatory material in Part A at the commencement of the survey process, no part of his brief was to either review or comment on that explanatory material, nor provide advice as to its density or as to its likely comprehension by the survey recipients. Indeed, to the extent he turned his mind to the material, he expressed the view that “it was long”: T200.16.
(4)He also understood his task was for the survey recipients to express a preference or choice for them to be reinstated or be compensated; he did not understand that the option for reinstatement involved an “opt out” option. When he considered the survey questions he understood he was conducting a review “only about reinstatement” and that compensation was “not really an option for people at the time of the survey” and any compensation would only be known after the survey (which he then sought to make clear in the questions he settled): see T168.41–45; T169.15–18; T170.23–T171.5.
(5)A version of the survey was sent to Mr Compton on 23 September 2021; a revised version was sent to Mr Compton by the solicitors on 15 October 2021; and on 20 October 2021, Mr Compton sent an email to the solicitors providing edits and comments and an alternative version of the principal question. The solicitors had provided a “yes” or “no” answer to one question concerning reinstatement but Mr Compton considered that this was “not balanced in the wording as it’s not giving equal weight/representation to the reinstatement option and the compensation option”. He also asked the solicitors whether “an ambivalent response is possible or permitted” and noted at this time that he was happy to discuss the comments he had made with the solicitors. This apparently occurred, and after a discussion with the solicitors, Mr Compton believed that as compensation was not an option available for the survey participants at the time of the survey, and hence he thought the question ultimately asked (rather than a question along the lines he had proposed) was preferable.
(6)In short, the additional questions and the form of the critical question initially proposed by Mr Compton to achieve optimal balance and allow ambivalent responses were not adopted following close involvement by Mr Compton’s “client” in the survey design process.
Although I consider that the solicitors acting for the Union no doubt thought they were acting appropriately in relation to Mr Compton and in procuring the survey generally, the process adopted was not what I had in mind when I made plain that I would be best assisted by a survey, conducted by an independent person and in accordance with the Survey Practice Note. If the survey administrator had been instructed optimally, it would have been for the survey administrator to ensure that the survey, including the explanatory material, was comprehensible and it would have been his job to settle upon the most balanced survey possible, recognising that the possibility of compensation was on the table and that survey recipients were entitled to be ambivalent in their responses.
Thirdly, evidence was adduced of communications between the Union and its members during the survey period which may have had the potential to skew the results of the survey. Contemporaneously with the commencement of the conduct of the survey, the Union was communicating with its members, including as to the survey. In a document entitled “FAQ – Outsourcing Case Remedies” (FAQ Document), sent by text to its members, the Union represented, among other things, the following:
Remedy hearings and survey
With respect to General Protections claims, this will be the biggest remedy decision ever in Australia with 2000 employees involved. To help the Judge reach a decision on reinstatement, workers who were outsourced are being surveyed by the Social Research Centre, with the following options:
1.        reinstatement and compensation
2.        compensation only
(Emphasis added).
This survey is voluntary and anonymous. It will used as evidence in the Federal Court to indicate to the Judge how many people want to be reinstated to assist the Judge in deciding whether to make orders for reinstatement.
If you choose reinstatement on the survey and the Judge makes orders for reinstatement but you no longer want to be reinstated, you will not be forced to return to work. The court will then consider how much compensation you should be awarded.
The TWU is seeking four separate remedies for our members:
•First, we are seeking reinstatement. Reinstatement is the primary remedy if you have been unlawfully terminated. For those members that want to be reinstated, we are also seeking compensation for loss of income up to their reinstatement.
•Second, for members who do not want to be reinstated, we are seeking compensation for loss of income since termination and into the future.
•Third, for all members (whether you choose reinstatement or not), we are seeking compensation for non-economic loss. If the decision by Qantas to terminate you has affected your mental health, we are asking that you are compensated for this.
•Finally, we are seeking penalties against Qantas for the action it has taken against each of you.
Q&A
…
What does reinstatement look like? Who will my employer be? Will I still be covered by the same enterprise agreement? Will I be full time or part time?
If reinstatement orders are made and you want to be reinstated, you will be reinstated to the same position you were in immediately prior to your termination. This means you will be employed by either QAL or QGS (depending on who previously employed you), you will be covered by the same enterprise agreement that covered you during your employment and you will work the same hours you were contracted to work prior to your termination.
Reinstatement should look like you were never terminated.
What if I choose reinstatement in the survey and the court makes orders for reinstatement but I no longer want to be reinstated because my circumstances have changed?
If you choose reinstatement in the survey and the Court makes orders for reinstatement but your circumstances change or you change your mind after you complete the survey, you will not be forced to return to your old job and can instead opt for compensation only.
…
What if I choose reinstatement, the court grants me reinstatement and then Qantas make me redundant again?
Any decision by Qantas to make you redundant again shortly after or before your reinstatement will be a breach of the court’s orders.
Further, as you will be reinstated to the same position you were in prior to your termination (together with a recognition of the continuity of service), Qantas will likely have to (for example) reengage its managers and reinstate its previous operations as they were prior to your termination - in other words, reverse its decision. It would make little sense for Qantas to then make you redundant again once it has gone to this effort.
For avoidance of doubt, you would be entitled to a redundancy package based on your years of continuous service as a result of any unlikely decision by Qantas to make you redundant.
…
**If your question is not answered in this document please contact your delegate, or otherwise your TWU branch: type="1">
Further, remote meetings using the Zoom technology were held between representatives of the Union and its members. This occurred on 3 September, 17 September and 1 October 2021 (the last of these meetings occurring after a case management hearing conducted on that day). The only evidence concerning what was said at those meetings was given by Mr McIntosh and I will return to it below, but it is fair to say by reason of the document that was sent to members (and the Zoom communications) that it must have been evident to the survey recipients who received those communications that the Union strongly favoured reinstatement and that there was apparently no binary choice between reinstatement or compensation, but rather, what was highlighted was a choice between “reinstatement and compensation” or “compensation only” (see the emphasis added in the extract of the FAQ Document above).
The FAQ Document is not literally inaccurate, although some aspects of it (including the unqualified assertion that any retrenchment shortly after reinstatement would necessarily be a breach of the Court’s orders) puts the matter too highly. All in all, however, it seems to me evident that anyone receiving communications during the course of the survey period, or who took up the express invitation to contact a Union delegate or a Union branch, would likely have received the message that reinstatement was the best option for a survey recipient and that reinstatement could be chosen, safe in the knowledge that a survey recipient would “not be forced to return to work”.
Fourthly, someone identifying themselves as “Desiree Sheets-Chavolla” posted the following comment on Facebook:
Hi All
This status is for anyone who was made redundant from Qantas Ground Operations this past year.
Today we had another win in Federal court [sic] with regards to reinstating our jobs that were illegally outsourced by Qantas.
The TWU has asked: if you know people involved in this case (who were made redundant) who haven’t received any comms from the TWU this week, please ask them to send their name, email, phone number and state to *** [email protected] ***
The Courts are [sic] sending out a reinstatement survey and we NEED everyone to say they are interested in REINSTATEMENT regardless of if you are or not interested in going back to work for Qantas.
This is non-binding and after we win reinstated [sic] you can opt for compensation instead of going back.
We need this survey to reflect that 90% of the redundant work force didn’t want this and want their jobs back.
(Emphasis in original).
It appears that there were 78 “likes” and 39 “comments” to this social media post (Initial Post).
From the exchange of comments, the following excerpts are significant. In response to a query by someone identifying themselves as “Sophia Vellis” asking “Do you know when we are going to receive the survey? [smiley face emoji]”, “Desiree Sheets-Chavolla” commented:
Sophia Vellis please share with any and everyone you know that might need this information [prayer emoji]
To this comment, “Sophia Vellis” responded:
Already did [winking face emoji] all waiting for the email
Then followed an exchange between persons identifying themselves as “Nick Bashford”, “Catherine Rose”, “Desiree Sheets-Chavolla” and “Tom Hauseman” (underline representing who posted the comment or reply, and bold representing where a person was “tagged”):
Nick Bashford:
All I say is good luck Because [sic] who wants to pay there redundancy back. If things chance and qantas [sic] has already sold off their ground equipment to the other ground handlers.
Catherine Rose:
Nick they may not have to if they’re rewarded compensation and their jobs.
Nick Bashford:
Catherine Rose all the ground equipment has been sold off and most of the stud is broken own anyway. Me personally I just want compensation and that’s it and move on. Unfortunately the old days have long gone now.
Desiree Sheets-Chavolla:
Nick Bashford understandable but you could do your part to help out your fellow workmates who might want their job back. You can still opt for compensation only after the judges [sic] sees 90% want reinstatement. As for paying back the redundancy money some people would have been jobless and needed their redundancy payment to support themselves so that will be worked out during the compensation part of the court award. Right now the judge will make his ruling on reinstatement after the surveys. So please put your bitterness aside and help us who really want to continue our careers in aviation. Thank you [prayer emoji]
Nick Bashford:
Desiree Sheets-Chavolla sorry I will not be filling it out.
Tom Hauserman:
Nick Bashford . [sic] Mate you want compensation? That’s the whole point of the survey. You need to fill it out. Then you opt out not to take your job back and then claim compensation. There will be no paying back of packages!
Further on in the chain of comments “Pasquale Ardino” returns to this saying:
Make sure Twu [sic] has your details if you were made redundant. The goal is to push for reinstatement, even if you don’t want your job back. The [sic] have to tackle that first before seeking compo , [sic] So the judge can make his decision. Surveys will go out soon so stick together. Good onya [sic] Desiree Sheets-Chavolla [thumbs-up emoji]
“Catherine Rose” responded:
Pasquale couldn’t say it better, stick together and help your union win.
Further on, in reply to another “post” seeking to “clarify” the position with respect to reinstatement, a person identifying himself as “Tony Tsiamis” continues this discussion, responding to a comment of a person identifying himself as “Peter Inches”, questioning “What about if don’t [sic] want to go back to your job and moved on …”:
Peter Inches Put down you want to get reinstated then if the time comes you can say no to going back
Desiree Sheets-Chavolla then made another post on 29 October 2021 (which gained 22 “likes”), stating:
Hi Guys,
Please check your emails for the Qantas/QGS REINSTATEMENT court survey.
Also, check your junk mail.
If you have not received the Survey from SOCIAL RESEARCH CENTRE by November 4th please ring TWU on 02 8114-6500 or by email on [email protected] to update your contact details.
Also guys can I encourage everyone to prioritize the reinstatement and answer YES to the section about being reinstated to your QGS/QAL role.
This is a non binding survey.
Unanswered surveys will not be counted.
Shortly before the Reinstatement Hearing, Qantas and QGS identified that they were seeking the following factual findings about these Facebook posts:
Facebook post and comments – Findings of fact regarding purpose
1.That on or about 1 October 2021 Ms Desiree Sheets-Chavolla made a post to the Facebook Group (i.e. Appendix 5) (the Post).
2.By making the post, Ms Sheets-Chavolla encouraged Affected Employees to respond to what she knew was a Court-directed reinstatement survey to the effect that they want to be reinstated regardless of whether they were interested in returning to work for Qantas or QGS (as the case may be).
3.In the week beginning 4 October 2021, Ms Sheets-Chavolla encouraged Ms Sofia Vellis to share the Post with other Affected Employees (see Appendix 6).
4.In the week beginning 4 October 2021, Ms Sheets-Chavolla made various comments in relation to the Post to a similar effect to (2) above (see Appendix 6).
5.Ms Sheets-Chavolla’s purpose in doing each of the things above was to artificially inflate the number of Affected Employees who responded to the survey in the affirmative.
6.The [Union] encouraged, solicited or incited Ms Sheets-Chavolla to do each of these things with that purpose.
7.In or before the week beginning 4 October 2021, Sofia Vellis shared the Post.
8.In the week beginning 4 October 2021, Tom Hauserman made a comment in relation to the Post to a similar effect to (2) above (see Appendix 6).
9.In the week beginning 4 October 2021, Pasquale Ardino made a comment in relation to the Post to a similar effect to (2) above (see Appendix 6).
10.In the week beginning 4 October 2021, Catherine Rose made a comment in relation to the Post to a similar effect to (2) above (see Appendix 6).
11.In or around the week beginning 18 October 2021, Tony Tsiamis made a comment to a similar effect to (2) above (see Appendix 8).
Given the seriousness of the findings sought by Qantas and QGS, on 8 October 2021, in order to provide procedural fairness to the six persons identified above alleged to have made Facebook posts or comments, I ordered that they had leave to: (1) appear on their own behalf or by a legal representative (if they wished to do so) at 10:15am on 15 December 2021 at the Reinstatement Hearing and (subject to any claims of privilege) to file, prior to 5pm on 14 December 2021, any affidavit evidence they wished to rely upon (if any) as to any involvement they had (if any), with the making of any of the Facebook posts; and (2) to make any application to vacate the order made in their absence. I also ordered that the Union provide verified discovery of any document directly relevant to the factual issue that it encouraged, solicited or incited Ms Sheets-Chavolla to inflate artificially the survey recipients who wished to opt for reinstatement.
The apparent makers of the Facebook posts obtained independent legal representation, and their solicitor informed the Court on the second day of the hearing that they did not intend to file any affidavit material nor appear at the time indicated in the orders, notwithstanding notification of the findings sought by Qantas and the leave being granted to them. Further, no documents were produced in answer to the order for discovery. In saying this, I should note that no documents were sought to be produced (for example, by way of texts or other messages) between identified officials of the Union and the apparent makers of the Facebook posts or between the apparent makers of the Facebook posts. The only evidence given relevant to the issue of the Union’s involvement was by Mr Nicholas McIntosh who, since August 2018, has been the Assistant National Secretary of the Union. He deposed that he was unaware of any relevant contact between the alleged makers of the Facebook posts and any Union official: see T90.1–T91.3.
In the absence of any evidence other than the Facebook posts themselves and the surrounding circumstances (and having regard to the seriousness of any finding as required by s 140(2) of the EA), the following findings should be made on the balance of probabilities as to the Facebook posts:
(1)That a Union activist, Ms Desiree Sheets-Chavolla made the Initial Post to the relevant Facebook group, which likely involved a publication to a number of persons who were survey recipients and she did so on 1 October 2021, being the same day the evidence reveals she attended the “Zoom” meeting with representatives of the Union at which the survey was discussed.
(2)By making the Initial Post, Ms Sheets-Chavolla encouraged some outsourced employees to respond to what she must have known was a Court-directed reinstatement survey to the effect that they want to be reinstated regardless of whether they were interested in returning to work for Qantas or QGS (as the case may be).
(3)In the week beginning 4 October 2021: Ms Sheets-Chavolla encouraged Ms Sofia Vellis to share the Initial Post with other outsourced employees and made various additional comments to a similar effect; and Mr Tom Hauserman, Mr Pasquale Ardino, Ms Catherine Rose and Mr Tony Tsiamis made a comment to a similar effect.
(4)In or before the week beginning 4 October 2021, Ms Sofia Vellis shared the Initial Post.
Additionally, evidence was adduced from a manager of Qantas, Mr Rodney Hollingworth establishing that the makers of each of the relevant posts were outsourced employees (although the position is not entirely clear in respect of Ms Rose).
This leaves for consideration the additional findings initially sought by Qantas and QGS that: (1) Ms Sheets-Chavolla’s purpose in doing each of the things above was to inflate artificially the number of outsourced employees who responded to the survey in the affirmative; and (2) the Union encouraged, solicited or incited Ms Sheets-Chavolla to do each of these things with that purpose.
As to (1), a finding as to the purpose of Ms Sheets-Chavolla is not determinative of any issue currently before me at the Reinstatement Hearing and given its nature, unless a finding was required, I do not propose to make it.
As to (2), whatever misgivings or suspicions arise because of: (a) Ms Sheets-Chavolla’s apparent previous interest in, and involvement with the proceeding, including speaking to the media; (b) her apparent desire to support the perceived interests of the Union; (c) her role as an activist within the Union; (d) her participation at the Zoom meeting held on 1 October 2021; (e) the fact that the survey was spoken about at the meeting on 1 October 2021; and (f) the wishes of the Union to promote reinstatement as a remedy, I have not reached a level of reasonable satisfaction that the Union encouraged, solicited or incited Ms Sheets-Chavolla to act in the way alleged. As it turned out, reflecting the reality of the evidence on this point, a finding in these terms was not ultimately pressed by Qantas and QGS in final address.
In any event, I do not consider I should reject the evidence of Mr McIntosh in this regard. Although I have some reservations about how I should accept at face value the completeness of Mr McIntosh’s evidence given his previous affidavits (a topic I will turn to below), on the evidence adduced, it is not established that the Union encouraged, solicited or incited Ms Sheets-Chavolla. I am somewhat comforted in reaching the conclusion that nothing untoward would have occurred at the Zoom meeting on 1 October 2021 because of the presence of the Union’s junior counsel at that meeting. Indeed, it seems to me it is inherently improbable a representation designed to skew the survey would have been made at a Zoom meeting without some comment being made by any responsible or competent counsel cautioning against such a foolhardy and injudicious course. As to any encouragement or incitement occurring at another time by the Union or its officials, the evidence is far too speculative to sustain a finding of such seriousness.
In the light of all this, what am I to do with the survey?
No objection was taken to the survey evidence that it was not relevant within the meaning of ss 55 and 56 of the EA on the ground that there was an insufficient basis to consider the results of the survey were sufficiently reliable and accurate in the light of the communications identified above made to survey recipients prior to, and during the course of, the survey. Nor, as surprising as it may be, was s 135 of the EA called in aid to seek the discretionary exclusion of the evidence in circumstances where there was apparently some departure from the requirements of the Survey Practice Note combined with the communications made by the Union and the wholly inappropriate Facebook posts.
The submission of Qantas and QGS was that the survey process (which had as its foundation in Mr Compton’s mind that “only one option was available”) miscarried. This submission should be accepted. Although the explanatory information a survey recipient would have seen was literally accurate, it was long (as Mr Compton accepted), and it was also dense. Mr Compton was not asked, nor did he advise, on its ability to be comprehended. What matters is that the survey design was arrived at through a process of deliberation over which the solicitors for the Union were heavily involved, the critical question in the survey lacked sufficient balance, and the survey is now clouded by the additional communications directed to at least some of the survey recipients which, quite plausibly, could have skewed the results. Because of the factors set out above, I am not satisfied that the survey, which became Exhibit B, has accurately captured a genuine choice between outsourced employees as to whether they prefer the possibility of reinstatement and the possibility of compensation.
Hence, I am not satisfied I can rely on the accuracy of the results of the survey.
C.4     Additional Findings
Outsourced Employees called by the Union
Mr Graeme Dowie, a member of the Union and a longstanding Qantas employee, gave unchallenged evidence as to his employment history, the impact of the pandemic upon him, his qualifications and employment expectations, and the deleterious effect of his retrenchment as a 56 year old man. Mr Dowie also gave evidence, which I accept, that he had pride in his work and that he wishes to be reinstated to his position at Qantas.
Mr Anthony Bates, a 61 year old Sydney family man with two dependent children, also gave evidence. He was another member of the Union and longstanding Qantas employee starting in 2001. He gave evidence he expected to see out his working days at Qantas. He was frustrated, angry and disappointed by the outsourcing. His job was important to his social interactions. He was offered a job swap but he did not want to perform any job with a “graveyard shift” (8pm to 6am). He received a payment upon redundancy which, including all his substantial statutory entitlements, was in the order of $100,000 to $120,000, and he is currently receiving approximately $1,500 per week in workers’ compensation payments. I accept that Mr Bates has been affected adversely in a significant way by his retrenchment and he wishes to be reinstated to his former position, which he enjoyed.
Mr Kim Mason, another Union member and a 44 year old former Qantas employee, gave similar evidence, which I accept, as to his intentions as to employment, his lack of formal qualifications, his devastation at the decision to outsource, the fact he was not offered any other permanent position within Qantas, his pride in his work and the impact of the outsourcing decision upon him. His last day was 16 March 2021. He was clearly upset while giving evidence and, unfortunately, is struggling in coping with his circumstances. He struck me as representative of the likely non-financial consequences of the outsourcing on many of the outsourced employees. Happily, he has now secured a job, but it is one which requires him to live remotely, some 250kms away from his family. It does not take much imagination or empathy to understand the strain that would put on a father separated from his family, and upon his family generally. He was offered a job swap or redeployment or retrenchment (although it appears he had somewhat limited information about the details of any job swap or redeployment). He chose retrenchment because he was concerned he would walk away with nothing, because of his then concerns about the future of the aviation industry. He strongly wishes to be reinstated.
All of this evidence was consistent with what one would have thought intuitively as being the human cost of the outsourcing decision and the impact of retrenchment on those that had laboured for Qantas and QGS, some for a very long period of time.
The Union Official called by the Union
Mr Nicholas McIntosh who, as noted above, is the Assistant National Secretary of the Union, relevantly gave evidence, which I generally accept, as to the following:
(1)Qantas and QGS and the contractors were all put on notice of the relief that the Union was seeking in this proceeding before the implementation of the outsourcing decision and that this might affect their contractual arrangements with Qantas.
(2)A consequence of the outsourcing decision on the membership of the Union has meant that in practical terms it has lost the ability to call upon the continuing work of experienced delegates who had been extensively trained (sometimes over some years) by the paid officials of the Union.
(3)There is limited or reduced ability to bargain for enterprise agreements to replace the Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018 (QAL Agreement) and the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS Agreement) or to organise and take protected industrial action in support of any claims in bargaining.
(4)Outsourced employees who have taken positions with the contractors are employed, in the opinion of Mr McIntosh, on inferior terms and conditions of employment to the terms and conditions of employment under the QAL Agreement and the QGS Agreement. In this regard, the Union has fewer members employed by the contractors than at Qantas and QGS and its density of members is lower. The Union has a difficult relationship with one of the contractors, Swissport, which, in the opinion of Mr McIntosh, has a workforce which is highly casual and has had a high turnover. This will mean that outsourced employees who remain in the industry will have less favourable terms and conditions of employment and will be in a weaker position to better their circumstances. Further, some employers in the ground handling industry, Swissport in particular, have what appears to be a hostile relationship with the Union.
(5)If reinstatement orders were made, the Union would attempt to cooperate with Qantas in seeking to reinstate outsourced employees to their positions including discussing with Qantas efficiencies in the conduct of work as it has done in the past with both Qantas and other participants in the aviation industry.

An issue as to the credit of Mr McIntosh was raised at the Reinstatement Hearing. Mr McIntosh gave evidence on affidavit at the liability hearing as to the density of Union membership. But it is evident that the records of the Union as to membership have been held in such a way that there has been (at best) some very real confusion as to the percentage of affected employees who were members of the Union at the time the outsourcing decision was made (although the number of outsourced employees who are Union members as at 31 December 2020 is now, at the Reinstatement Hearing, an agreed fact). Important caveats on the accuracy of information previously given to the Court as to the number of affected employees who were Union members emerged during cross-examination at the Reinstatement Hearing. On 6 May 2021, submissions were filed with the Court asserting, in effect, that approximately 1,818 of a little less than 2,000 employees were Union employees as at 31 December 2020. This was a significant overstatement of the true position and this misrepresentation of the position should not have occurred.
It now appears that the affidavit evidence relied upon at the liability hearing as to Union membership was inaccurate, although there was no cross-examination on this topic at the liability hearing, and the percentage of affected employees who were Union members was not determinative of the result at that hearing (as it happened). It will be recalled that I was critical of the affidavit evidence filed by Qantas at the earlier hearing, and it now appears that a lack of proper attention to presenting a complete picture in the written evidence was not restricted to evidence adduced by one side of the case. Despite all this, and although it causes me a degree of disquiet, the evidence given by Mr McIntosh generally accorded with the inherent probabilities and my concerns about this issue have not caused me to disbelieve his evidence generally.
The Qantas Employees called by Qantas and QGS
Mr Colin Hughes gave evidence as to the redundancy process, a timeline as to creating a new ground operations business, and the perceived benefits of the outsourcing decisions as meeting the so-called “three imperatives” of Qantas as referred to in the principal judgment (at 302 [117]).
Mr Andrew David gave evidence including as to: (a) Qantas’s current activities; and (b) the steps necessary to re-establish a ground operations business and its perceived lack of commerciality.
The evidence given by these witnesses was generally consistent with the inherent probabilities, including the fact that Qantas would do all it could to minimise the costs of ground handling to the extent it could do so, and that all relevant decisions it would make would be informed by reducing the costs of ground handling. The oral evidence at this hearing did not suffer from the vice of artificiality or overzealous preparation apparent in so much of Qantas’ evidence at the liability hearing. Although there was close cross-examination on credit, particularly in relation to Mr Hughes, I do not consider that the cardinal aspects of the evidence of the witnesses was undermined in a substantial way, and from this evidence, it is appropriate to make the following findings:
(1)The last six months have been one of the worst financial periods in the history of Qantas, which has caused the stand-down of 10,000 employees since August 2021. An extraordinary revenue loss of $20 billion has been incurred since the beginning of the pandemic. The focus of Qantas moving forward is seeking a return to normality when it can, and on reducing costs and preserving liquidity. It has committed to a three year recovery plan.
(2)The perception of those responsible within Qantas is that the outsourcing has performed well in terms of savings and safety; indeed Qantas now estimates that by the end of the 2023 financial year it will secure savings of approximately $125 million per annum by reason of the outsourcing of its ground operations.
(3)Apart from an estimate prepared by Mr Hughes of a timetable for implementing the reinstatement of outsourced employees (as reflected in Ex 1, p 200), which estimated a 28 week period from the end of the opt out period following a reinstatement order (reinstatement timetable), no detailed planning has been done to date for a reinstatement of outsourced employees because: (a) in the abstract, and without understanding the number and location of reinstated employees, it is impossible to understand the future shape and scale of the new ground handling operation that would be required; (b) it was considered commercially prudent not to raise the uncertainty at this time with the contractors, including any possibility for the need to purchase GSE (a somewhat curious notion given the contractors would not be ignorant of the risk reinstatement could be ordered); and (c) the attention of senior managers has been focussed on the exigencies of the continuing disruption caused by the pandemic.
(4)Although the reinstatement timetable prepared (in consultation with industrial relations specialists and solicitors) might be thought to be one that in some respects is somewhat bureaucratic, and involves processes which one might intuitively or superficially have thought could be truncated, it is clear from his oral evidence that Mr Hughes had thought carefully about each component of the estimates relating to “Recruitment and Training” and “Asset Selection & Introduction” and had fastened upon his estimates conscientiously. It is safe to conclude it will be a lengthy and complicated exercise which depends, in part, on negotiation with, and the co-operation of, third parties, including a monopoly lessor and obtaining GSE from the contractors, and procurement of any required (and available) new GSE. Mr David’s admittedly broad-brush estimate based upon his general experience in the aviation industry was considerably longer, and gives no confidence the timeline identified by Mr Hughes could be truncated.
(5)2,000 persons are needed to perform the necessary work and if, as seems certain, there would be insufficient reinstated employees to do the work, it is quite clear that instead of recruiting further employees as ground handlers, Qantas has decided it would be in its commercial interests to put in place a new labour model to implement new operational processes to support an integrated ground handling model (with employees of a contractor and reinstated employees). Such a new and largely untried model of dealing with ground handling might create some risk of complication, although this is far from certain.
(6)Although it is impossible to be definitive as to timing and process of any retrenchments after any reinstatement, it is evident that Mr David is of a fixed cast of mind, communicated orally to Mr Hughes, that “he would not re-create the business and would continue to receive the ground handling services from the ground handling providers”, that is, contractors: see T335.28–T336.3. It is manifest that the subjective view of those with responsibility within Qantas is that the savings secured by outsourcing are highly significant, and that there is no prospect whatever of that subjective view changing in the foreseeable future. Indeed, the firm intention of Mr David, the man responsible for making the decision, is that any reinstated employees would be retrenched as soon as Qantas considered it could lawfully do so.
It is also convenient here to make a further finding as to the intentions of Qantas (which emerged during final address). Qantas and QGS had expressly agreed with the Union and admitted for the purposes of this proceeding that “in order for [Qantas and QGS] to comply with global reinstatement orders of the kind sought in [prayers] 1 to 5 of the [Union’s] Points of Claim dated 25 August 2021, Qantas would need to [re-create substantially] the Qantas Airports Ground Operations business”. One would have thought such a concession was as clear as a mountain stream. If an order was made of a certain character, then Qantas and QGS would, as a matter of fact, be required to do certain things. Qantas and QGS relied upon these certain things, that is, the re-creation of a ground operations business as constituting a powerful discretionary consideration as to why the reinstatement order ought not be made. In these circumstances, it was perplexing to be confronted by a submission made on behalf of Qantas and QGS that if a reinstatement order was made, Qantas and QGS “don’t accept at all” (at T440.25) that it would be necessary, in order to comply with that order, that Qantas and QGS would need to re-create substantially its Qantas Airports Ground Operations business.
After reflecting on this curious submission, I raised with senior counsel for Qantas and QGS what I was supposed to do with it. On one view it seemed to me that Qantas and QGS were saying that although they relied heavily upon the prejudice of being forced to re-create a ground operations business, the case in final submissions had transformed, and they were now saying that if an order for reinstatement was made, Qantas and QGS “don’t accept at all” that they were required to take the steps relied upon to make out that prejudice. This made, and still makes, no sense to me. It appears, however, that although there was an acceptance that if ordered to do so Qantas and QGS would need to re-create the Qantas Airports Ground Operations business, they did not want to admit that this would be the practical effect of a reinstatement order and would be a step necessary to take to comply with the order (even though, in terms, this is what they had already admitted as reflected in Exhibit A).
Although this submission stuck me, at best, as somewhat Gilbertian, what I do take away from it is that it presages the reality that Qantas and QGS will take advice as to the precise obligations arising under any reinstatement orders if made, and then do all it can (within what it is advised is the law) to maintain the perceived commercial benefits of outsourcing. The evidence could not have been clearer on this point.
I will return to the significance of these facts found below. But first I will turn to the legal principles to be applied in considering the relief sought.
D THE APPLICABLE LAW
D.1 Reinstatement Generally
The power of the Court to make non-penal remedial orders arises under s 545(1) of the FWA, and both reinstatement and compensation are specifically referred to in s 545(2) as orders a Court may make. Section 545 appears, relevantly, as follows:
545 Orders that can be made by particular courts
Federal Court …
(1)The Federal Court … may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
(2)Without limiting subsection (1), orders the Federal Court … may make include the following:
(a)an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b)an order awarding compensation for loss that a person has suffered because of the contravention;
(c)an order for reinstatement of a person.
As can be seen from its terms and its statutory context, s 545 is a wide power allowing the Court to make any order that it considers appropriate if it is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Such a power to make any remedial order under s 545(1) involves, by the use of the word “may”, a discretion: see s 33(2A) of the Acts Interpretation Act 1901 (Cth).
Given the breadth of the power, it allows the Court to fashion a remedial response to the exigencies of any contravention or proposed contravention, taking into account relevant considerations informing the appropriate exercise of discretion in an individual case. Those relevant considerations are not expressly confined, and are best identified and considered by reference to the facts of each individual case in which relief is sought. But the statutory requirement that an order is “appropriate” highlights the necessity that any order is one the Court considers to be judicially appropriate, or just.
During the course of a case management hearing on 8 September 2021, senior counsel for the Union made the submission that the provisions of the FWA that Qantas has been found to have contravened have an important public policy purpose of protecting employees from adverse action as a consequence of the exercise, or to prevent the exercise, of industrial rights. It was further said that the principled approach by reference to the authorities is that “in a general sense at least, the proper vindication of that public interest ought [to] be satisfied by reinstatement orders being made”: T22.35–36. In response to my request that senior counsel identify the high water mark of those authorities, counsel referred to Bowling v General Motors Holdens Ltd (1980) 3 ALR 297 (JB Sweeney, Evatt and Northrop JJ) and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (Jessup J).
The submission foreshadowed by the Union was later developed in the following way.
The assessment of the scope, purpose and operation of the power conferred by s 545(1) to order the reinstatement of employees in circumstances where an employer has contravened s 340 of the FWA and the contravention has led to the dismissal of employees, requires ss 340 and 545(1) to be considered together in the light of the protective purpose of s 340(1)(b) and the context, including by reference to the settled historical understanding of the power to order reinstatement (where an employer has been found to have contravened the predecessor provisions to s 340 (or s 346) of the FWA).
A number of provisions of Part 3-1 of the FWA, including s 340(1)(b), create norms of conduct by rendering illicit conduct taken for a proscribed reason or with a proscribed motivation or intention and determining that breaches of those stipulated norms are “civil remedy provisions”. Part 3-1 does not itself contain the power to make remedial, corrective or penal orders in cases of breaches of civil remedy provisions. That is the subject of Part 4-1 of the FWA, in particular, s 545 and, in the case of penal orders, s 546.
The purpose of the norm found in this case to have been contravened, s 340(1)(b), is evident from its terms; namely, a person is prohibited from taking adverse action to prevent the exercise of a workplace right by another person. Section 340(1)(b) relevantly seeks to protect employees by prohibiting employers taking adverse action against employees for the purpose of preventing them exercising a workplace right. The protective nature of the provision is emphasised by s 336(1)(a), which details that one of the objects of Part 3-1 is to “protect workplace rights”. This object is directed, among other things, to s 340(1): cf Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; (2020) 282 FCR 1 (at 8 [13] per Allsop CJ, and at 20 [67] per Flick J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564 (at 587–588 [45]–[47] per Bromberg J).
The protective nature of s 340 is also explained in the Guide set out in s 334 which states that Part 3-1 provides “general workplace protections” and that Division 3 (in which s 340 is contained) “protects workplace rights, and the exercise of those rights” (see also s 6(2)(a) which describes Part 3-1 in similar terms). Also relevant for present purposes is s 336(1)(d), which identifies another object of Part 3-1 is to provide effective relief for persons who have been “adversely affected as a result of contraventions of this Part”.
The Union stresses that what is appropriate for the purposes of s 545(1) must be determined in the light of the purpose of the “civil remedy provision” contravened, including the subject matter, scope and purpose of the provision. It is also said that the non-exhaustive list of orders set out in s 545(2) are significant in pointing to the purpose of s 545, namely, to address or remedy the effects of a contravention of a civil remedy provision.
The Union submits that where an employer has taken adverse action contrary to the norm stipulated by s 340, the question of what order should be made should be framed in the context of the protection which the contravener has infringed. The relief granted should, so far as possible, be effective (consistently with the object set out in s 336(1)(d)) to ameliorate and remedy the adverse consequences flowing from the contravention of the particular statutory norm.
Hence, the Union submits that, where employees have been terminated for the purpose of preventing them from exercising workplace rights under s 340(1)(b), effective relief to deal with and ameliorate such a contravention and vindicate the protective purpose of s 340(1)(b) will (subject to the employee being willing and able to be re-employed) be to order reinstatement. In this sense, it is contended that the statutory context demonstrates that reinstatement is the primary and presumptive remedy for contraventions of Part 3-1 which lead to dismissal of employees.
The Union drew from the decision of the Full Court in Bowling (which considered ss 5(1) and (5) of the Conciliation and Arbitration Act 1904 (Cth) (CA Act)) the following five so-called “points of principle”:
(1)Reinstatement would ordinarily be ordered where an employee is dismissed contrary to s 5(1) of the CA Act, being the forerunner to s 346 of the FWA and, ultimately, s 340 of the FWA. Hence the presumptive or prima facie position was that reinstatement should be ordered.
(2)Although the power to order reinstatement was discretionary, it was a power that fell to be exercised to vindicate the protective purpose of the prohibition against adverse action being taken in contravention of the norm of conduct mandated by s 5(1) of the CA Act.
(3)Unless an order for reinstatement were made, the protective purpose of s 5(1) of the CA Act would not be vindicated and the employer would benefit from its contravention by ridding itself of an employee or employees for one or other prohibited reasons.
(4)Consistently with the presumptive or prima facie position, reinstatement should be ordered absent “good reasons” (such as the employee not desiring to be reinstated).
(5)An employer should not be able to benefit or profit from its breach of the statutorily prescribed norm.
Consistently with this, the Union pointed to Kerrin v Leighton Contractors Pty Ltd (1986) 16 IR 40, where Keely J observed (at 45–46) that counsel for the employer “accepted”:
… that the proper principles to be applied were those set out by the Full Court in Bowling’s case (1980) 50 FLR 79; 33 ALR 297 and accordingly that, upon the conviction of the employer, prima facie the court should direct the reinstatement of the employee. However, he submitted that that prima facie position changed “once evidence is led or argument is advanced as to why the prima facie position ought not apply.” He said that the court should have regard to the reasons for judgment of Wilson J (with whose reasons Mason and Deane JJ agreed) in Slonim v Fellows (1984) 154 CLR 505. That case dealt with the question whether a Conciliation and Arbitration Board had jurisdiction under the Industrial Relations Act 1979 (Vic) (before its amendment in 1983) to determine a claim for reinstatement. Referring to the general powers of the Board under s 34(1) of that Act, Wilson J said (at 515):
“First, a clear distinction should be drawn between employment of a person and reinstatement of a recently dismissed employee. As the court rightly observed, the power to direct that A employ B is a very drastic one. It is not lightly to be inferred in the absence of compelling language.”
[Counsel for the employer] expressly refrained from submitting that Slonim v Fellows “in any way cuts down the full authority of Bowling’s case” (ie the Full Court judgment in (1980) 50 FLR 79; 33 ALR 297) and said that the decisions in the two cases are not inconsistent. Later in his address Mr Kaufman said “it may be that to some extent Slonim v Fellows does in a practical sense cut across Bowling’s case”. In my opinion the dictum of Wilson J in Slonim v Fellows, read in its context and in the light of the issues in that case, is not an authority requiring a single judge of this court to refuse to follow the principles expressed by the Full Court in Bowling’s case.
In support of his submissions as to the question of reinstatement, Mr Kaufman cited a number of decisions by State Courts and Tribunals, including G J Coles & Co Ltd v Pietruszka (1983) 4 IR 329. In my opinion those decisions do not support the defendant’s submissions in this case. In addition they must be read in the light of the fact that they were given under different legislation. In so far as they contain any statement which is inconsistent with the judgment of the Full Court in Bowling’s case, the latter is an authority binding upon me.

50.Table 2 below sets out a comparison of financial results of the Qantas Group for:
a.FY2021 (full year);
b.FY2020 (full year);
c.HY2020 (half year, as at 31 December 2020); and
d.FY2019 (full year, being the last full year financial results prior to the onset of the COVID-19 pandemic).

TABLE 2: Comparison of Qantas Group Financial Results for FY2021, FY2020, HY2020, FY2019[3]
[3] Source: Qantas Airways Limited preliminary final report for financial year ended 30 June 2021.

FY2021

($M)

(% against FY2019)

FY2020

($M)

(% against FY2019)

HY2020

($M)

FY2019

($M)

Revenue and other income

5,934

(33%)

14,257

(79%)

9,464

17,966

Net passenger revenue

3,766

(24%)

12,183

(78%)

8,305

15,696

Underlying before tax profit (loss)

(1,826)

(N/A)

124

(9%)

771

1,326

Statutory before tax profit (loss)

(2,351)

(N/A)

(2,708)

(N/A)

648

1,192

Net debt

(5,890)

(125%)

(4,734)

(100%)

(5,273)

(4,710)

Cash and cash equivalents

$2.2B

(100%)

$3.5B

(159%)

$1.74B

$2.2B

51.As is shown in Table 2 above, the Qantas Group has reported approximately $5.0b in cumulative statutory losses for FY2020 and FY2021. Based on publicly available information, this is expected to grow to around $6.0b cumulative statutory losses by the end of FY2022.
52.Over FY2020 and FY2021, to support the Qantas Group’s operations through the COVID-19 pandemic, the Qantas Group raised in excess of $2.5b in debt (both Secured and Unsecured) and $1.4b in equity – a total of $3.9b in additional funding. Net debt and Cash quoted in Table 2 incorporate this liquidity. An additional $0.5b in debt has also recently been announced through an unsecured bond placement.
53.This additional funding has been necessary to support the Qantas Group’s operations through the COVID-19 pandemic, but has placed considerable pressure on the balance sheet position.

Group Level Pre/Post-Pandemic Flying Activity
54.Table 3 in Appendix 1 sets out the total number of flights, passengers carried, and “Available Seat Kilometres” (ASKs) and “Revenue Passenger Kilometres” (RPKs) on flights operated by the Qantas Group (excluding Jetstar Asia) in FY2021, FY2020 and FY2019, for the Qantas Groups’ domestic and international networks. The table shows the total number of departures of regular public transport (RPT) flights (which excludes charter, international freight assistance mechanism and repatriation flights).
For the purposes of that Table:
ASK measures the total number of seats on all flights multiplied by the distance they travel. Each kilometre travelled by each seat on each flight is 1 ASK.
RPK is the total number of seat kilometres travelled, but only taking into account seats occupied by paying passengers.
55.Table 4 in Appendix 1 shows a comparison of RPT flights operated by Qantas, or its subsidiaries operating under the QantasLink brand (for domestic, international and combined), for each calendar month of calendar years 2019, 2020 and 2021 to date (and the percentage this represents of 2019 levels).

Qantas and Qantaslink Flying Activity at each Airport
56.Tables 5 to 14 in Appendix 1 show a comparison of the number of departures of RPT flights operated by Qantas, or its subsidiaries operating under the QantasLink brand, from Sydney, Melbourne, Brisbane, Perth, Adelaide, Darwin, Alice Springs, Cairns, Townsville and Canberra airports (domestic, international and combined) respectively for each calendar month of calendar years 2019, 2020 and 2021 to date (and the percentage this represents of 2019 levels).

Flying activity fluctuations across the Airports
57.Table 15 in Appendix 1 shows the departure levels of RPT flights operated by Qantas, or its subsidiaries operating under the QantasLink brand, at each of the Airports in September and November of 2020, and January, February, March and August 2021, as a percentage of the same month in 2019.
58.The reductions and fluctuations in the level of flying activity depicted in Tables 3 to 15 were caused by the prevailing COVID-19 situation and associated travel restrictions affecting the relevant State or Territory at each point in time and the consequential changes to the Qantas Group flying network.

Forecasted flying activity levels
59.Table 16 in Appendix 1 shows Qantas’ ASK forecasts for domestic and international RPT flights (combined) operated by Qantas, or its subsidiaries operating under the QantasLink brand, along with the actual ASK in that month (which is shown in brackets), as a percentage of the ASK in the corresponding month in calendar year 2019.
60.Table 17 in Appendix 1 shows Qantas’ ASK forecasts for domestic RPT flights operated by Qantas, or its subsidiaries operating under the QantasLink brand, along with the actual ASK in that month (which is shown in brackets), as a percentage of the ASK in the corresponding month in calendar year 2019.
61.Table 18 in Appendix 1 shows Qantas’ ASK forecasts for international RPT flights operated by Qantas, or its subsidiaries operating under the QantasLink brand, along with the actual ASK in that month (which is shown in brackets), as a percentage of the ASK in the corresponding month in calendar year 2019.
62.Table 19 in Appendix 1 shows Qantas’ departure forecasts for domestic and international RPT flights (combined) operated by Qantas, or its subsidiaries operating under the QantasLink brand, along with the actual departures in that month (which is shown in brackets), as a percentage of the departures in the corresponding month in calendar year 2019.
63.Table 20 in Appendix 1 shows Qantas’ departure forecasts for domestic RPT flights operated by Qantas, or its subsidiaries operating under the QantasLink brand, along with the actual departures in that month (which is shown in brackets), as a percentage of the departures in the corresponding month in calendar year 2019.
64.Table 21 in Appendix 1 shows Qantas’ departure forecasts for international RPT flights operated by Qantas, or its subsidiaries operating under the QantasLink brand, along with the actual departures in that month (which is shown in brackets), as a percentage of the departures in the corresponding month in calendar year 2019.

E Ongoing stand downs of employees in 2021
65.Throughout 2021, there have been significant stand downs of Qantas Group employees due to the ongoing impacts of the pandemic on Qantas’ flying activity.
66.Table 22 below illustrates the percentage of Qantas employees who were stood down in the period April to August 2021 (across both domestic and international).

TABLE 22: Percentage of Qantas employees stood down April–August 2021

Month in 2021

Total percentage of current cabin crew employees stood down

Total percentage of current Australian airports (i.e., Customer Service staff) employees stood down

Total percentage of current flight crew (pilots) employees stood down

April

72%

31%

46%

May

69%

26%

42%

June

66%

25%

37%

July

64%

20%

36%

August

72%

35%

45%

F The Benefits of Outsourcing
Performance of the new Ground Handling Companies
Financial performance
67.Under the Third Party Contracts entered into with the Ground Handling Companies, Qantas pays for Ground Operations services on the basis of a fixed price for a “turn” of an aircraft. As a consequence, leaving aside the circumstances listed in paragraph 67A.:
(a)Qantas does not incur costs for ground handling services unless there is an aircraft that needs to be ‘turned’; and
a.Qantas’ Ground Operations costs vary according to the number of flights it operates.

67A.Under the Third Party Contracts, Qantas may incur additional fees in addition to the fixed price for a “turn” of an aircraft referred to in paragraph 67. These fees may include:
a.in respect of each Third Party Contract with Swissport, charges in the event of a major disruption to Qantas’ schedule, which is outside of the direct control of the Ground Handling Company, including in circumstances of third party industrial activity, significant infrastructure failure where the infrastructure is not under the care or control of the Ground Handling Company, and extraordinary weather events. In the event of such a major disruption the Ground Handling Company is permitted to charge reasonable and substantiated expenses incurred by the Ground Handling Company to mitigate the delay to any services it provides under the Third Party Contract caused by the major disruption:;
b.charges in the event of a flight cancellation or off-scheduled flight if Qantas does not provide a certain amount of written notice of the cancellation or change in flight time to the Ground Handling Company; and
c.charges for any additional services provided by the Ground Handling Company, such as ground support equipment and engineering assistance, that are otherwise not included as services under the Third Party Contract.

68.Since the outsourcing of Ground Operations was implemented, Qantas has not been required to make any capital expenditure in respect of GSE for the Qantas Airports business.

Other performance metrics
GSE
69.The Ground Handling Companies have each agreed as part of their contractual engagement that:
a.the provision of GSE is included in the Ground Handling rates (as defined in each Third Party Contract) and no additional charges will be added unless Qantas requests additional GSE;
b.all maintenance, inspection certification and replacement of GSE will be provided by and the responsibility of the Ground Handling Company;
c.they will ensure that all GSE used in provision of the ground handling services is fit for purpose for Qantas aircraft and maintained in compliance with all applicable standards and regulations, and the manufacturers guidelines; and
d.they will ensure that all GSE used in the provision of ground handling services to Qantas complies with specified maximum asset age requirements.

Other matters
70.Without speculating as to the reasons for the relevant tenders being unsuccessful, during the period 2018 to 2020, Qantas’ Australian Airports business unit participated in 41 tenders for the provision of Ground Operations to other airlines (with such services proposed to be provided by the Affected Employees and/or QGS Affected Employees), but was only successful in relation to two of those tenders.

G Response to reinstatement
71.Given the reduced flying activity levels during 2021 as set out in Tables 3 to 15 and given the extent of stand downs across the operational workgroups in 2021 as set out in paragraphs 65 to 65 above, had Qantas not decided to outsource Ground Operations in November 2020, Qantas and QGS would have stood down large numbers of their ramp, baggage and fleet employees in 2021.

72.The following tables (Tables 23 and 24) below set out Qantas’ estimated number of ground services employees that would have been stood down in 2021 if Qantas had not outsourced Ground Operations in November 2020. The estimates set out in Tables 23 and 24 are estimates only and the Applicant notes that it is not presently in a position to verify whether the estimates are reasonably based. The estimates in the Tables below:
a.take into account the reduction of flying activity and the stand downs in other operational workgroups at the Airports; and
b.are based on the headcount data of employees as at the beginning of December 2020, assuming that voluntary redundancy processes had been completed and excluding supervisors and line managers (i.e., prior to the implementation of outsourcing from late December 2020 onwards).

TABLE 23: Estimated total and proportion of ramp/baggage employees stood down in 2021

Month in 2021

Estimated total and proportion of employees stood down (n=1170 total ramp/baggage headcount)

January

668 (57% of workforce)

February

652 (56% of workforce)

March

561 (48% of workforce)

April

335 (29% of workforce)

May

326 (28% of workforce)

June

329 (28% of workforce)

July

277 (24% of workforce)

August

277 (24% of workforce)

September

686 (59% of workforce)

TABLE 24: Estimated total and proportion of fleet presentation employees stood down in 2021

Month in 2021

Estimated total and proportion of employees stood down (n=497 total fleet presentation headcount)

January

308 (62% of total workforce)

February

302 (61% of total workforce)

March

263 (53% of total workforce)

April

167 (34% of total workforce)

May

163 (33% of total workforce)

June

165 (33% of total workforce)

July

143 (29% of total workforce)

August

143 (29% of total workforce)

September

316 (64% of total workforce)

73.Within the ramp/baggage workforce of Affected Employees, approximately 30% were baggage handlers and 70% ramp employees.
74.Qantas continues to face serious financial and operational difficulties as a result of the ongoing pandemic, and associated uncertainty about the level of flying activity.

Additional agreed fact
75.As at 31 December 2020 716 Affected Employees were members of the Applicant. The other Affected Employees were not.

Date: 15 October 2021, amended 13 December 2021, amended 14 December 2021
APPENDIX 1 – NETWORK FLYING ACTIVITY DATA
TABLE 3: Total number of Qantas flights, passengers carried, “Available Seat Kilometres” (ASKs) and “Revenue Passenger Kilometres” (RPKs) in FY2021, FY2020 and FY2019

FY2021

(% against FY2019)

FY2020

(% against FY2019)

FY2019

Domestic

Flights

119,435

165,457

210,609

ASKs

27,010M

(51%)

39,482M

(75%)

52,754M

Passengers carried

14,484,000

(40%)

26,587,000

(74%)

36,142,000

RPKs

17.3B

(40%)

31.4B

(73%)

42.8B

International

Flights

1,244

27,306

35,186

ASKs

1,837M

(2%)

66,664M

(73%)

90,728M

Passengers carried

1,315,000

(9%)

10,853,000

(71%)

15,208,000

RPKs

1.15B

(1%)

56.1B

(72%)

78.1B

Combined domestic and international

Flights

120,679

192,763

245,795

ASKs

28,847M

(20%)

106,146M

(74%)

143,482M

Passengers carried

15,799,000

(31%)

37,431,000

(73%)

51,350,000

RPKS

18.45B

(15%)

87.6B

(72%)

120.9B

TABLE 4: Comparison of number of RPT flights operated by Qantas or its subsidiaries, 2019–2021

2021

2020

2019

January

Domestic

9,855

(55%)

18,271

(103%)

17,758

International

30

(1%)

3,511

(108%)

3,263

Combined

9,885

(47%)

21,782

(104%)

21,021

February

Domestic

10,402

(59%)

18,624

(105%)

17,680

International

28

(1%)

2,981

(106%)

2,809

Combined

10,430

(51%)

21,605

(105%)

20,489

March

Domestic

14,561

(75%)

19,446

(100%)

19,501

International

69

(2%)

2,719

(90%)

3,025

Combined

14,630

(65%)

22,165

(98%)

22,526

April

Domestic

16,255

(86%)

5,176

(27%)

18,850

International

336

(11%)

524

(17%)

3,119

Combined

16,591

(76%)

5,700

(26%)

21,969

May

Domestic

17,637

(88%)

1,178

(6%)

20,146

International

701

(23%)

35

(1%)

3,100

Combined

18,338

(79%)

1,213

(5%)

23,246

June

Domestic

16,904

(89%)

2,207

(12%)

18,997

International

665

(22%)

5

(0%)

3,041

Combined

17,569

(80%)

2,212

(10%)

22,038

July

Domestic

12,317

(60%)

4,221

(21%)

20,419

International

762

(23%)

0

(0%)

3,269

Combined

13,079

(55%)

4,221

(18%)

23,688

August

Domestic

7,062

(35%)

4,416

(22%)

20,132

International

88

(3%)

0

(0%)

3,187

Combined

7,150

(31%)

4,416

(19%)

23,319

September

Domestic

4,713

(24%)

19,561

International

0

(0%)

3,091

Combined

4,713

(21%)

22,652

October

Domestic

5,931

(29%)

20,420

International

19

(1%)

3,215

Combined

5,950

(25%)

23,635

November

Domestic

7,724

(40%)

19,434

International

31

(1%)

3,098

Combined

7,755

(34%)

22,532

December

Domestic

12,121

(64%)

18,799

International

31

(1%)

3,413

Combined

12,152

(55%)

22,212

TABLE 5: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Sydney Airport, 2019–2021

2021

2020

2019

January

Domestic

998
(29%)

3,645
(106%)

3,444

International

9
(1%)

917
(107%)

859

Combined

1,007
(23%)

4,562
(106%)

4,303

February

Domestic

1,695
(46%)

3,915
(107%)

3,665

International

8
(1%)

747
(103%)

724

Combined

1,703
(39%)

4,662
(106%)

4,389

March

Domestic

2,936
(72%)

4,032
(99%)

4,065

International

20
(3%)

688
(87%)

790

Combined

2,956
(61%)

4,720
(97%)

4,855

April

Domestic

3,090
(81%)

905
(24%)

3,821

International

78
(10%)

123
(15%)

796

Combined

3,168
(69%)

1,028
(22%)

4,617

May

Domestic

3,462
(83%)

160
(4%)

4,162

International

156
(19%)

0
(0%)

806

Combined

3,618
(73%)

160
(3%)

4,968

June

Domestic

3,202
(82%)

374
(10%)

3,883

International

158
(20%)

0
(0%)

792

Combined

3,360
(72%)

374
(8%)

4,675

July

Domestic

1,402
(33%)

665
(16%)

4,201

International

134
(16%)

0
(0%)

840

Combined

1,536
(30%)

665
(13%)

5,041

August

Domestic

353
(8%)

428
(10%)

4,183

International

14
(2%)

0
(0%)

814

Combined

367
(7%)

428
(9%)

4,997

September

Domestic

349
(9%)

4,087

International

0
(0%)

787

Combined

349
(7%)

4,874

October

Domestic

624
(15%)

4,260

International

9
(1%)

814

Combined

633
(12%)

5,074

November

Domestic

1,114
(27%)

4,055

International

10
(1%)

784

Combined

1,124
(23%)

4,839

December

Domestic

2,186
(57%)

3,821

International

8
(1%)

883

Combined

2,194
(47%)

4,704

TABLE 6: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Melbourne Airport, 2019–2021

2021

2020

2019

January

Domestic

1,080
(41%)

2,615
(99%)

2,637

International

0
(0%)

409
(103%)

398

Combined

1,080
(36%)

3,024
(100%)

3,035

February

Domestic

1,116
(42%)

2,744
(104%)

2,647

International

0
(0%)

368
(104%)

355

Combined

1,116
(37%)

3,112
(104%)

3,002

March

Domestic

1,590
(54%)

2,836
(97%)

2,920

International

0
(0%)

328
(89%)

368

Combined

1,590
(48%)

3,164
(96%)

3,288

April

Domestic

2,254
(83%)

613
(23%)

2,716

International

40
(11%)

73
(19%)

380

Combined

2,294
(74%)

686
(22%)

3,096

May

Domestic

2,541
(86%)

115
(4%)

2,950

International

96
(26%)

7
(2%)

371

Combined

2,637
(79%)

122
(4%)

3,321

June

Domestic

2,069
(74%)

268
(10%)

2,782

International

76
(21%)

1
(0%)

366

Combined

2,145
(68%)

269
(9%)

3,148

July

Domestic

1,383
(46%)

240
(8%)

2,986

International

114
(29%)

0
(0%)

392

Combined

1,497
(44%)

240
(7%)

3,378

August

Domestic

447
(15%)

92
(3%)

2,970

International

4
(1%)

0
(0%)

388

Combined

451
(13%)

92
(3%)

3,358

September

Domestic

76
(3%)

2,883

International

0
(0%)

376

Combined

76
(2%)

3,259

October

Domestic

74
(2%)

2,992

International

0
(0%)

394

Combined

74
(2%)

3,386

November

Domestic

233
(8%)

2,849

International

0
(0%)

385

Combined

233
(7%)

3,234

December

Domestic

1,383
(51%)

2,715

International

0
(0%)

414

Combined

1,383
(44%)

3,129

TABLE 7: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Brisbane Airport, 2019–2021

2021

2020

2019

January

Domestic

1,760
(64%)

2,791
(102%)

2,740

International

0
(0%)

285
(106%)

270

Combined

1,760
(58%)

3,076
(102%)

3,010

February

Domestic

1,692
(63%)

2,835
(105%)

2,705

International

0
(0%)

258
(107%)

242

Combined

1,692
(57%)

3,093
(105%)

2,947

March

Domestic

2,285
(76%)

3,001
(100%)

2,993

International

7
(3%)

227
(87%)

261

Combined

2,292
(70%)

3,228
(99%)

3,254

April

Domestic

2,283
(78%)

861
(29%)

2,937

International

37
(14%)

56
(21%)

265

Combined

2,320
(72%)

917
(29%)

3,202

May

Domestic

2,528
(81%)

164
(5%)

3,108

International

76
(31%)

3
(1%)

249

Combined

2,604
(78%)

167
(5%)

3,357

June

Domestic

2,584
(88%)

368
(12%)

2,952

International

84
(35%)

0
(0%)

243

Combined

2,668
(84%)

368
(12%)

3,195

July

Domestic

1,980
(62%)

827
(26%)

3,170

International

105
(38%)

0
(0%)

278

Combined

2,085
(60%)

827
(24%)

3,448

August

Domestic

1,225
(40%)

967
(31%)

3,084

International

15
(6%)

0
(0%)

267

Combined

1,240
(37%)

967
(29%)

3,351

September

Domestic

974
(33%)

2,989

International

0
(0%)

264

Combined

974
(30%)

3,253

October

Domestic

1,074
(34%)

3,116

International

0
(0%)

273

Combined

1,074
(32%)

3,389

November

Domestic

1,283
(43%)

2,998

International

0
(0%)

260

Combined

1,283
(39%)

3,258

December

Domestic

2,059
(70%)

2,930

International

0
(0%)

272

Combined

2,059
(64%)

3,202

TABLE 8: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Perth Airport, 2019–2021

2021

2020

2019

January

Domestic

1,040
(66%)

1,612
(102%)

1,582

International

1
(1%)

83
(114%)

73

Combined

1,041
(63%)

1,695
(102%)

1,655

February

Domestic

919
(62%)

1,549
(105%)

1,482

International

0
(0%)

60
(107%)

56

Combined

919
(60%)

1,609
(105%)

1,538

March

Domestic

1,270
(78%)

1,660
(102%)

1,628

International

0
(0%)

57
(92%)

62

Combined

1,270
(75%)

1,717
(102%)

1,690

April

Domestic

1,286
(80%)

538
(33%)

1,611

International

0
(0%)

12
(20%)

60

Combined

1,286
(77%)

550
(33%)

1,671

May

Domestic

1,369
(81%)

138
(8%)

1,689

International

0
(0%)

7
(11%)

62

Combined

1,369
(78%)

145
(8%)

1,751

June

Domestic

1,350
(86%)

205
(13%)

1,573

International

0
(0%)

1
(2%)

60

Combined

1,350
(83%)

206
(13%)

1,633

July

Domestic

1,164
(68%)

464
(27%)

1,706

International

0
(0%)

0
(0%)

62

Combined

1,164
(66%)

464
(26%)

1,768

August

Domestic

1,034
(62%)

520
(31%)

1,672

International

0
(0%)

0
(0%)

62

Combined

1,034
(60%)

520
(30%)

1,734

September

Domestic

626
(38%)

1,627

International

0
(0%)

60

Combined

626
(37%)

1,687

October

Domestic

770
(45%)

1,719

International

0
(0%)

62

Combined

770
(43%)

1,781

November

Domestic

926
(58%)

1,593

International

2
(3%)

60

Combined

928
(56%)

1,653

December

Domestic

1,143
(72%)

1,598

International

4
(5%)

77

Combined

1,147
(68%)

1,675

TABLE 9: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Adelaide Airport, 2019–2021

2021

2020

2019

January

Domestic

508
(51%)

1,000
(101%)

988

International

0
(0%)

0
(0%)

0

Combined

508
(51%)

1,000
(101%)

988

February

Domestic

482
(50%)

1,004
(104%)

963

International

0
(0%)

0
(0%)

0

Combined

482
(50%)

1,004
(104%)

963

March

Domestic

708
(66%)

1,052
(98%)

1,073

International

0
(0%)

0
(0%)

0

Combined

708
(66%)

1,052
(98%)

1,073

April

Domestic

850
(85%)

229
(23%)

998

International

0
(0%)

0
(0%)

0

Combined

850
(85%)

229
(23%)

998

May

Domestic

929
(85%)

27
(2%)

1,092

International

0
(0%)

0
(0%)

0

Combined

929
(85%)

27
(2%)

1,092

June

Domestic

907
(89%)

42
(4%)

1,021

International

0
(0%)

0
(0%)

0

Combined

907
(89%)

42
(4%)

1,021

July

Domestic

691
(65%)

131
(12%)

1,064

International

0
(0%)

0
(0%)

0

Combined

691
(65%)

131
(12%)

1,064

August

Domestic

252
(24%)

196
(19%)

1,055

International

0
(0%)

0
(0%)

0

Combined

252
(24%)

196
(19%)

1,055

September

Domestic

168
(16%)

1,036

International

0
(0%)

0

Combined

168
(16%)

1,036

October

Domestic

299
(28%)

1,081

International

0
(0%)

0

Combined

299
(28%)

1,081

November

Domestic

391
(38%)

1,033

International

0
(0%)

0

Combined

391
(38%)

1,033

December

Domestic

494
(49%)

1,014

International

0
(0%)

0

Combined

494
(49%)

1,014

TABLE 10: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Darwin Airport, 2019–2021

2021

2020

2019

January

Domestic

136
(70%)

195
(101%)

193

International

2
(0%)

0
(0%)

0

Combined

138
(72%)

195
(101%)

193

February

Domestic

115
(61%)

196
(104%)

188

International

4
(0%)

0
(0%)

0

Combined

119
(63%)

196
(104%)

188

March

Domestic

149
(65%)

225
(98%)

229

International

6
(0%)

0
(0%)

0

Combined

155
(68%)

225
(98%)

229

April

Domestic

200
(90%)

64
(29%)

221

International

5
(0%)

0
(0%)

0

Combined

205
(93%)

64
(29%)

221

May

Domestic

269
(116%)

17
(7%)

232

International

6
(0%)

0
(0%)

0

Combined

275
(119%)

17
(7%)

232

June

Domestic

302
(118%)

29
(11%)

256

International

5
(0%)

0
(0%)

0

Combined

307
(120%)

29
(11%)

256

July

Domestic

289
(104%)

54
(19%)

277

International

7
(0%)

0
(0%)

0

Combined

296
(107%)

54
(19%)

277

August

Domestic

251
(96%)

81
(31%)

262

International

7
(0%)

0
(0%)

0

Combined

258
(98%)

81
(31%)

262

September

Domestic

64
(27%)

240

International

0
(0%)

0

Combined

64
(27%)

240

October

Domestic

89
(36%)

244

International

0
(0%)

0

Combined

89
(36%)

244

November

Domestic

122
(56%)

219

International

1
(0%)

0

Combined

123
(56%)

219

December

Domestic

123
(57%)

215

International

0
(0%)

0

Combined

123
(57%)

215

TABLE 11: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Alice Springs Airport, 2019–2021

2021

2020

2019

January

Domestic

109
(51%)

168
(78%)

215

International

0
(0%)

0
(0%)

0

Combined

109
(51%)

168
(78%)

215

February

Domestic

96
(47%)

169
(82%)

206

International

0
(0%)

0
(0%)

0

Combined

96
(47%)

169
(82%)

206

March

Domestic

106
(45%)

181
(77%)

234

International

0
(0%)

0
(0%)

0

Combined

106
(45%)

181
(77%)

234

April

Domestic

134
(72%)

61
(33%)

187

International

0
(0%)

0
(0%)

0

Combined

134
(72%)

61
(33%)

187

May

Domestic

158
(84%)

17
(9%)

189

International

0
(0%)

0
(0%)

0

Combined

158
(84%)

17
(9%)

189

June

Domestic

178
(94%)

25
(13%)

189

International

0
(0%)

0
(0%)

0

Combined

178
(94%)

25
(13%)

189

July

Domestic

165
(81%)

58
(29%)

203

International

0
(0%)

0
(0%)

0

Combined

165
(81%)

58
(29%)

203

August

Domestic

138
(68%)

91
(45%)

204

International

0
(0%)

0
(0%)

0

Combined

138
(68%)

91
(45%)

204

September

Domestic

89
(45%)

198

International

0
(0%)

0

Combined

89
(45%)

198

October

Domestic

94
(47%)

202

International

0
(0%)

0

Combined

94
(47%)

202

November

Domestic

98
(54%)

182

International

0
(0%)

0

Combined

98
(54%)

182

December

Domestic

103
(60%)

173

International

0
(0%)

0

Combined

103
(60%)

173

TABLE 12: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Cairns Airport, 2019–2021

2021

2020

2019

January

Domestic

392
(66%)

581
(98%)

594

International

0
(0%)

30
(0%)

0

Combined

392
(66%)

611
(103%)

594

February

Domestic

311
(58%)

525
(97%)

539

International

0
(0%)

29
(0%)

0

Combined

311
(58%)

554
(103%)

539

March

Domestic

396
(68%)

542
(92%)

586

International

0
(0%)

28
(2800%)

1

Combined

396
(67%)

570
(97%)

587

April

Domestic

488
(84%)

144
(25%)

578

International

0
(0%)

0
(0%)

29

Combined

488
(80%)

144
(24%)

607

May

Domestic

474
(80%)

43
(7%)

592

International

0
(0%)

0
(0%)

31

Combined

474
(76%)

43
(7%)

623

June

Domestic

522
(89%)

69
(12%)

587

International

4
(13%)

0
(0%)

30

Combined

526
(85%)

69
(11%)

617

July

Domestic

491
(78%)

204
(33%)

627

International

2
(6%)

0
(0%)

31

Combined

493
(75%)

204
(31%)

658

August

Domestic

372
(62%)

254
(43%)

597

International

0
(0%)

0
(0%)

31

Combined

372
(59%)

254
(40%)

628

September

Domestic

354
(63%)

566

International

0
(0%)

30

Combined

354
(59%)

596

October

Domestic

348
(60%)

584

International

0
(0%)

31

Combined

348
(57%)

615

November

Domestic

333
(60%)

557

International

0
(0%)

30

Combined

333
(57%)

587

December

Domestic

395
(69%)

572

International

0
(0%)

30

Combined

395
(66%)

602

TABLE 13: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Townsville Airport, 2019–2021

2021

2020

2019

January

Domestic

298
(76%)

401
(102%)

392

International

0
(0%)

0
(0%)

0

Combined

298
(76%)

401
(102%)

392

February

Domestic

272
(76%)

379
(105%)

360

International

0
(0%)

0
(0%)

0

Combined

272
(76%)

379
(105%)

360

March

Domestic

320
(81%)

409
(104%)

393

International

0
(0%)

0
(0%)

0

Combined

320
(81%)

409
(104%)

393

April

Domestic

321
(80%)

128
(32%)

399

International

0
(0%)

0
(0%)

0

Combined

321
(80%)

128
(32%)

399

May

Domestic

326
(77%)

52
(12%)

425

International

0
(0%)

0
(0%)

0

Combined

326
(77%)

52
(12%)

425

June

Domestic

332
(83%)

74
(19%)

398

International

0
(0%)

0
(0%)

0

Combined

332
(83%)

74
(19%)

398

July

Domestic

337
(78%)

74
(33%)

433

International

0
(0%)

0
(0%)

0

Combined

337
(78%)

74
(33%)

433

August

Domestic

307
(75%)

161
(40%)

407

International

0
(0%)

0
(0%)

0

Combined

307
(75%)

161
(40%)

407

September

Domestic

213
(54%)

397

International

0
(0%)

0

Combined

213
(54%)

397

October

Domestic

237
(57%)

418

International

0
(0%)

0

Combined

237
(57%)

418

November

Domestic

269
(66%)

407

International

0
(0%)

0

Combined

269
(66%)

407

December

Domestic

301
(75%)

402

International

0
(0%)

0

Combined

301
(75%)

402

TABLE 14: Comparison of number of departures of RPT flights operated by Qantas or its subsidiaries from Canberra Airport, 2019–2021

2021

2020

2019

January

Domestic

439
(58%)

756
(101%)

751

International

0
(0%)

0
(0%)

0

Combined

439
(58%)

756
(101%)

751

February

Domestic

603
(65%)

953
(103%)

925

International

0
(0%)

0
(0%)

0

Combined

603
(65%)

953
(103%)

925

March

Domestic

612
(61%)

997
(99%)

1,003

International

0
(0%)

0
(0%)

0

Combined

612
(61%)

997
(99%)

1,003

April

Domestic

687
(72%)

249
(26%)

950

International

0
(0%)

0
(0%)

0

Combined

687
(72%)

249
(26%)

950

May

Domestic

882
(87%)

67
(7%)

1,019

International

0
(0%)

0
(0%)

0

Combined

882
(87%)

67
(7%)

1,019

June

Domestic

821
(86%)

126
(13%)

950

International

0
(0%)

0
(0%)

0

Combined

821
(86%)

126
(13%)

950

July

Domestic

504
(49%)

160
(15%)

1,035

International

0
(0%)

0
(0%)

0

Combined

504
(49%)

160
(15%)

1,035

August

Domestic

203
(20%)

139
(14%)

1,028

International

0
(0%)

0
(0%)

0

Combined

203
(20%)

139
(14%)

1,028

September

Domestic

107
(11%)

998

International

0
(0%)

0

Combined

107
(11%)

998

October

Domestic

215
(21%)

1,037

International

0
(0%)

0

Combined

215
(21%)

1,037

November

Domestic

316
(32%)

988

International

0
(0%)

0

Combined

316
(32%)

988

December

Domestic

469
(53%)

878

International

0
(0%)

0

Combined

469
(53%)

878

TABLE 15: Departure levels of RPT flights operated by Qantas or its subsidiaries from each Airport, September 2020–August 2021

September

November

January

February

March

August

Sydney

7%

23%

23%

39%

61%

7%

Melbourne

2%

7%

36%

37%

48%

13%

Brisbane

30%

39%

58%

57%

70%

37%

Perth

37%

56%

63%

60%

75%

60%

Adelaide

16%

38%

51%

50%

66%

24%

Darwin

27%

56%

72%

63%

68%

98%

Alice Springs

45%

54%

51%

47%

45%

68%

Cairns

59%

57%

66%

58%

67%

59%

Townsville

54%

66%

76%

76%

81%

75%

Canberra

11%

32%

58%

65%

61%

20%

TABLE 16: ASK forecasts and actual ASK, as a percentage of the ASK in the corresponding month in 2019, for domestic and international Qantas RPT flights, September 2020–August 2021

Forecast period

September 2020

November 2020

January 2021

February 2021

March 2021

August 2021

Date of forecast

September 2020

12% (7%)

12%

15%

22%

24%

64%

November 2020

18% (13%)

27%

28%

30%

55%

January 2021

24% (17%)

23%

23%

49%

February 2021

23% (17%)

28%

39%

March 2021

30% (25%)

44%

August 2021

13% (13%)

TABLE 17: ASK forecasts and actual ASK, as a percentage of the ASK in the corresponding month in 2019, for domestic Qantas RPT flights, September 2020–August 2021

Forecast period

September 2020

November 2020

January 2021

February 2021

March 2021

August 2021

Date of forecast

September 2020

28% (21%)

34%

49%

65%

69%

102%

November 2020

41%(35%)

77%

72%

75%

103%

January 2021

64%

(54%)

61%

67%

101%

February 2021

56%

(50%)

68%

99%

March 2021

74%

(71%)

98%

August 2021

35%

(35%)

TABLE 18: ASK forecasts and actual ASK, as a percentage of the ASK in the corresponding month in 2019, for international Qantas RPT flights, September 2020–August 2021

Forecast period

Date of forecast

September 2020

November 2020

January 2021

February 2021

March 2021

August 2021

September 2020

4% (0%)

0%

0%

0%

0%

43%

November 2020

5% (1%)

4%

5%

7%

29%

January 2021

6% (1%)

4%

0%

20%

February 2021

7% (1%)

7%

7%

March 2021

7% (1%)

15%

August 2021

1% (1%)

TABLE 19: Departure forecasts and actual forecasts, as a percentage of the departures in the corresponding month in 2019, for domestic and international Qantas RPT flights, September 2020–August 2021

Forecast period

September 2020

November 2020

January 2021

February 2021

March 2021

August 2021

Date of forecast

September 2020

29% (21%)

39%

53%

63%

68%

100%

November 2020

41% (34%)

69%

70%

76%

100%

January 2021

57% (47%)

62%

68%

96%

February 2021

58% (51%)

65%

87%

March 2021

70% (65%)

88%

August 2021

31% (31%)

TABLE 20: Departure forecasts and actual forecasts, as a percentage of the departures in the corresponding month in 2019, for domestic Qantas RPT flights, September 2020–August 2021

Forecast period

Date of forecast

September 2020

November 2020

January 2021

February 2021

March 2021

August 2021

September 2020

33% (24%)

46%

63%

73%

78%

105%

November 2020

46% (40%)

80%

79%

83%

107%

January 2021

65% (55%)

72%

78%

105%

February 2021

65% (59%)

74%

97%

March 2021

79% (75%)

96%

August 2021

35% (35%)

TABLE 21: Departure forecasts and actual forecasts, as a percentage of the departures in the corresponding month in 2019, for international Qantas RPT flights, September 2020–August 2021

Forecast period

September 2020

November 2020

January 2021

February 2021

March 2021

August 2021

Date of forecast

September 2020

5% (0%)

0%

0%

0%

0%

68%

November 2020

7% (1%)

6%

13%

29%

56%

January 2021

9% (1%)

5%

1%

43%

February 2021

9% (1%)

8%

25%

March 2021

10% (2%)

35%

August 2021

3% (3%)

File number:	NSD 1309 of 2020
Judgment of:	LEE J
Date of judgment:	17 December 2021
Catchwords:	EMPLOYMENT LAW – adverse action – decision of Qantas to outsource ground handling operations at 10 Australian airports in the midst of the COVID-19 pandemic – outsourcing found to have been for a prohibited reason contravening the Fair Work Act 2009 (Cth) (FWA) – form of relief – separate question as to whether “global” reinstatement should be ordered – consideration of the relevant principles – whether there is a prima facie entitlement to reinstatement under s 545 of the FWA – need to determine what relief is “appropriate” in the circumstances of the particular case – the importance of work as a form of continuing participation in society – the statutory purpose to preserve collective industrial rights – where outsourced employees cannot be reinstated without re-creation of a ground handling operation involving significant cost and delay – where Qantas will immediately retrench the workers again when it perceives it can lawfully do so – where ordering reinstatement would involve continuing supervision by the Court – reinstatement not the appropriate remedy in all the circumstances PRACTICE AND PROCEDURE – observations on the representative capacity of the Union – where no fiduciary relationships exists – observations as to how and whether third parties are bound by a judgment obtained by a litigation “representative”
Legislation:	Acts Interpretation Act 1901 (Cth) s 33(2A) Conciliation and Arbitration Act 1904 (Cth) ss 5(1), 5(5) Evidence Act 1995 (Cth) ss 55, 56, 135, 140(2), 191 Fair Work (Registered Organisations) Act 2009 (Cth) s 27 Fair Work Act 2009 (Cth) ss 12, 233, 293, 334, 336(1), 340, 346, 381, 390, 392, 502, 539(2), 540, 544, 545, 546 Federal Court of Australia Act 1976 (Cth) ss 33ZB, 37P(2), Pt IVA Federal Court Rules 2011 (Cth) rr 20.14, 30.01
Cases cited:	Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 81 ALR 213 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662; (2005) 147 IR 35 Bowling v General Motors Holdens Ltd (1980) 3 ALR 297 Carter v Hyde (1923) 33 CLR 115 Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661; (2004) 142 FCR 296 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bluestar Pacific Pty Limited [2009] FCA 726 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; (2020) 282 FCR 1 Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 2) [2020] FCA 1215 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218; (2012) 228 IR 195 Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088; (2015) 253 IR 391 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 Independent Education Union v Geelong Grammar School [2000] FCA 557 Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716 Kerrin v Leighton Contractors Pty Ltd (1986) 16 IR 40 News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265 Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340 Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18 Qantas Airways Limited v Transport Workers’ Union of Australia [2021] FCA 1136 Quinn v Overland [2010] FCA 799; (2010) 199 IR 40 R v Dunlop Rubber Australia Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71 Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2015) 327 ALR 460 Sutherland v Hills Industries Ltd (unreported, Keely J, 22 September 1982) Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 Transport Workers’ Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012; (2021) 308 IR 333 Transport Workers’ Union of Australia v Qantas Airways Limited (No 3) [2021] FCA 1339 Websdale v S & J D Investments Pty Ltd (1991) 24 NSWLR 573
Survey Evidence Practice Note (GPN-SURV) [3.2], [4.5] Kolstad I, “Why Firms Should Not Always Maximise Profits” (2007) 76 Journal of Business Ethics (2007) 137
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	163
Date of hearing:	13 – 17 December 2021
Counsel for the Applicant:	Mr M Gibian SC with Mr P Boncardo
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondents:	Mr R Dalton QC with Mr M Follett and Mr N Burmeister
Solicitor for the Respondents:	Herbert Smith Freehills

ORDER MADE BY:	LEE J
DATE OF ORDER:	17 DECEMBER 2021

FY2021 ($M) (% against FY2019)	FY2020 ($M) (% against FY2019)	HY2020 ($M)	FY2019 ($M)
Revenue and other income	5,934 (33%)	14,257 (79%)	9,464	17,966
Net passenger revenue	3,766 (24%)	12,183 (78%)	8,305	15,696
Underlying before tax profit (loss)	(1,826) (N/A)	124 (9%)	771	1,326
Statutory before tax profit (loss)	(2,351) (N/A)	(2,708) (N/A)	648	1,192
Net debt	(5,890) (125%)	(4,734) (100%)	(5,273)	(4,710)
Cash and cash equivalents	$2.2B (100%)	$3.5B (159%)	$1.74B	$2.2B

Month in 2021	Total percentage of current cabin crew employees stood down	Total percentage of current Australian airports (i.e., Customer Service staff) employees stood down	Total percentage of current flight crew (pilots) employees stood down
April	72%	31%	46%
May	69%	26%	42%
June	66%	25%	37%
July	64%	20%	36%
August	72%	35%	45%

Month in 2021	Estimated total and proportion of employees stood down (n=1170 total ramp/baggage headcount)
January	668 (57% of workforce)
February	652 (56% of workforce)
March	561 (48% of workforce)
April	335 (29% of workforce)
May	326 (28% of workforce)
June	329 (28% of workforce)
July	277 (24% of workforce)
August	277 (24% of workforce)
September	686 (59% of workforce)

FY2021 (% against FY2019)	FY2020 (% against FY2019)	FY2019
Domestic
Flights	119,435	165,457	210,609
ASKs	27,010M (51%)	39,482M (75%)	52,754M
Passengers carried	14,484,000 (40%)	26,587,000 (74%)	36,142,000
RPKs	17.3B (40%)	31.4B (73%)	42.8B
International
Flights	1,244	27,306	35,186
ASKs	1,837M (2%)	66,664M (73%)	90,728M
Passengers carried	1,315,000 (9%)	10,853,000 (71%)	15,208,000
RPKs	1.15B (1%)	56.1B (72%)	78.1B
Combined domestic and international
Flights	120,679	192,763	245,795
ASKs	28,847M (20%)	106,146M (74%)	143,482M
Passengers carried	15,799,000 (31%)	37,431,000 (73%)	51,350,000
RPKS	18.45B (15%)	87.6B (72%)	120.9B

2021	2020	2019
January	Domestic	9,855 (55%)	18,271 (103%)	17,758
	International	30 (1%)	3,511 (108%)	3,263
	Combined	9,885 (47%)	21,782 (104%)	21,021
February	Domestic	10,402 (59%)	18,624 (105%)	17,680
	International	28 (1%)	2,981 (106%)	2,809
	Combined	10,430 (51%)	21,605 (105%)	20,489
March	Domestic	14,561 (75%)	19,446 (100%)	19,501
	International	69 (2%)	2,719 (90%)	3,025
	Combined	14,630 (65%)	22,165 (98%)	22,526
April	Domestic	16,255 (86%)	5,176 (27%)	18,850
	International	336 (11%)	524 (17%)	3,119
	Combined	16,591 (76%)	5,700 (26%)	21,969
May	Domestic	17,637 (88%)	1,178 (6%)	20,146
	International	701 (23%)	35 (1%)	3,100
	Combined	18,338 (79%)	1,213 (5%)	23,246
June	Domestic	16,904 (89%)	2,207 (12%)	18,997
	International	665 (22%)	5 (0%)	3,041
	Combined	17,569 (80%)	2,212 (10%)	22,038
July	Domestic	12,317 (60%)	4,221 (21%)	20,419
	International	762 (23%)	0 (0%)	3,269
	Combined	13,079 (55%)	4,221 (18%)	23,688
August	Domestic	7,062 (35%)	4,416 (22%)	20,132
	International	88 (3%)	0 (0%)	3,187
	Combined	7,150 (31%)	4,416 (19%)	23,319
September	Domestic	4,713 (24%)	19,561
	International	0 (0%)	3,091
	Combined	4,713 (21%)	22,652
October	Domestic	5,931 (29%)	20,420
	International	19 (1%)	3,215
	Combined	5,950 (25%)	23,635
November	Domestic	7,724 (40%)	19,434
	International	31 (1%)	3,098
	Combined	7,755 (34%)	22,532
December	Domestic	12,121 (64%)	18,799
	International	31 (1%)	3,413
	Combined	12,152 (55%)	22,212

September	November	January	February	March	August
Sydney	7%	23%	23%	39%	61%	7%
Melbourne	2%	7%	36%	37%	48%	13%
Brisbane	30%	39%	58%	57%	70%	37%
Perth	37%	56%	63%	60%	75%	60%
Adelaide	16%	38%	51%	50%	66%	24%
Darwin	27%	56%	72%	63%	68%	98%
Alice Springs	45%	54%	51%	47%	45%	68%
Cairns	59%	57%	66%	58%	67%	59%
Townsville	54%	66%	76%	76%	81%	75%
Canberra	11%	32%	58%	65%	61%	20%

Forecast period
September 2020	November 2020	January 2021	February 2021	March 2021	August 2021
Date of forecast	September 2020	12% (7%)	12%	15%	22%	24%	64%
	November 2020	18% (13%)	27%	28%	30%	55%
	January 2021	24% (17%)	23%	23%	49%
	February 2021	23% (17%)	28%	39%
	March 2021	30% (25%)	44%
	August 2021	13% (13%)