Qantas v sacked workers: What does it all mean?

afr.com:

The High Court of Australia will on Wednesday morning decide whether Qantas illegally sacked nearly 1700 ground staff during the pandemic. Employers across the country will be watching the ruling closely.

Qantas decided to outsource 1683 ground workers’ jobs to third-party labour providers at 10 airports across Australia in 2021. The decision followed a long history of the airline trying to bust its heavily unionised workforce by creating subsidiaries and outsourcing teams.

TWU national secretary Michael Kaine has pressed the case on behalf of sacked Qantas workers. Alex Ellinghausen

Qantas argued it was a commercial necessity given the uncertainty of the pandemic but the Transport Workers Union relied on evidence suggesting the airline made the decision because of concerns about the possibility of protected industrial action.

The full Federal Court of Australia ruled in July 2021 that Qantas contravened the Fair Work Act because the airline was at least in part motivated by the desire to ward off strike action.

The Federal Court said the timing of the outsourcing decision during the pandemic meant the scope for any protected industrial action was effectively eliminated.

“An employee’s ability to participate in protected industrial action is a ‘workplace right’ within the meaning of [the Fair Work Act]. Section 340(1)(b) of the FW Act provides that, ‘A person must not take adverse action against another person… to prevent the exercise of a workplace right by the other person’,” it said.

The TWU tried to have the workers reinstated but failed, as did a Qantas appeal to the Federal Court.

Qantas then appealed to the High Court arguing that the threat of protected industrial action was not real because the enterprise