Qantas illegal sacking appeal thrown out

Transport Workers Union national secretary Michael Kaine has called for prominent company director Richard Goyder to resign as chairman of the Qantas board after the airline’s appeal to the High Court was tossed.

The High Court on Wednesday morning handed down a decision to uphold two decisions by the federal court that the national carrier had illegally outsourced nearly 1,700 workers in November 2020, the Union said. 

It marks the latest in a spate of unfavourable news for Qantas, which is also facing allegations by the Australian Competition and Consumer Commission that it advertised flights that had already been cancelled in 2022.

Transport Workers Union national secretary Michael Kaine said Qantas workers had made history and took aim at the company's executives and board, led by arguably Western Australia's most high profile company director, Richard Goyder. 

“The Joyce regime has been toppled, but the airline cannot achieve the reset necessary for its survival under the same board that resided over the largest case of illegal sackings in Australian corporate history," Mr Kaine said. 

"Richard Goyder cannot make it through another day as Chair."

Outside Qantas, Mr Goyder leads the boards of three prominent WA-based organisations, Woodside Energy, Channel 7 Telethon Trust and the West Australian Symphony Orchestra.

He is also chairman of the AFL Commission and was managing director of Wesfarmers from 2005 to 2017 before moving into company director roles. 

Mr Kaine argued that transport workers were owed an apology by Alan Joyce's successor Vanessa Hudson, who was drafted in as chief executive early after Mr Joyce exited the company on September 5.

“All eyes will be on Vanessa Hudson as she responds to this verdict. Illegally sacked workers are owed an apology and an end to Qantas’ attempts to delay paying compensation and penalties.

In a statement following the High Court's decision, Qantas said the decision to outsource workers had been made during the pandemic and that it 'deeply' regretted the decision had on those affected. 

“The likelihood of a years’ long crisis led Qantas to restructure its business to improve its ability to survive and ultimately recover," it said.

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

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

In November 2020, Qantas Airways decided to outsource its ground handling operations at 10 Australian airports while its operations were affected by the COVID-19 pandemic.

According to the High Court judgment, ground handling services were performed by third-party suppliers instead of Qantas employees, many of whom were Transport Workers Union members.

TWU alleged Qantas breached the Fair Work Act by making the outsourcing decision, launching legal action against the carrier in the federal court in mid-2021.

Multiple appeals were heard before the Full Court of the Federal Court after Qantas’ outsourcing decision was found to be an adverse action under the Fair Work Act, affecting its employees to their prejudice.

Qantas escalated the matter to the High Court but the full bench unanimously dismissed its appeal.

In the judgment, the majority of High Court justices found Qantas’ adverse action prevented the employees’ workplace right.

“Qantas had sound commercial reasons for the outsourcing decision. Qantas also had additional reasons which were ‘substantial and operative’,” the judgment said.

“Those additional reasons, as found by a judge of the Federal Court of Australia, were to prevent the affected employees from exercising workplace rights to organise and engage in protected industrial action and to participate in bargaining.

“The affected employees could not exercise those workplace rights at the time of the outsourcing decision.

“Nevertheless, it was expected at the time of the outsourcing decision that, in the absence of the outsourcing decision, the affected employees would be able to exercise and would in fact exercise those workplace rights in 2021.”