You may have seen and heard in the news recently that after a lengthy legal battle, workers and the union movement won a historic victory in the High Court against Qantas. In November 2020, as the height of the Covid-19 pandemic took hold, Qantas took the decision to outsource its ground handling operations to third-party providers. This decision resulted in the unemployment of over 1,700 Qantas employees.

At the time of Qantas making and announcing it’s outsourcing decision, the affected employees were prohibited from organising or engaging in protected industrial action because their enterprise agreement had not passed its nominal expiry date. They were unable to take protected industrial action of any significance because of the complex steps necessary to engage in protected industrial action under the Fair Work Act had not been taken.

Under the Act, a person has a workplace right if the person is entitled to a benefit or has a role or responsibility under a workplace law, workplace instrument (such as an award or agreement) or an order made by an industrial body.

The Transport Workers Union of Australia (TWU) alleged that Qantas had made it’s decision to outsource ground handling operations in order to prevent its employees from exercising their workplace rights, including the right to engage in protected industrial action and to participate in enterprise bargaining.

When the case came before the Federal Court, the primary judge concluded that Qantas had failed to establish that it had a sound commercial reason for the outsourcing decision and was in contravention of section 340(1)(b) of the Act which provides that a person must not take adverse action against another person “to prevent the exercise of a workplace right by the other person”.

Qantas took their appeal to the High Court of Australia based on this argument that its decision to put 1,700 employees out of a job was for ‘sound commercial reasons’ after its business essentially ground to a halt during the peak of the pandemic.

The High Court unanimously dismissed Qantas’ appeal and found that the primary judge had correctly interpreted section 340(1)(b) of the Fair Work Act and additionally found that the primary judge had not made any error in finding that Qantas had contravened that section.

The decision is a welcome and significant victory for workers and unions. It will help us to protect workers from being unfairly targeted by employers who are seeking to undermine their workplace rights. It sends a strong message to bosses that they will be held accountable for their actions.

The ruling is also important because it extends the scope of protection under the Fair Work Act. The Court found that section 340(1)(b) of the Act prohibits employers from taking adverse action against employees in order to prevent them from exercising workplace rights that they do not have now, but will or may have in the future. This means that employers cannot take adverse action against employees to prevent them from engaging in protected industrial action or participating in enterprise bargaining, even if those employees are not currently covered by an enterprise agreement.

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