Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71

FEDERAL COURT OF AUSTRALIA

Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71 Appeal from: Transport Workers' Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 873 Transport Workers' Union of Australia v Qantas Airways Limited (No 4) [2021] FCA 1602

File number(s): NSD 927 of 2021 NSD 7 of 2022

Judgment of: BROMBERG, RANGIAH AND BROMWICH JJ

Date of judgment: 4 May 2022

Catchwords: INDUSTRIAL LAW – employer appeal – adverse action – decision of Qantas to outsource ground handling operations during COVID-19 pandemic – appeal from the decision of the primary judge finding that Qantas Airways Ltd contravened s 340(1)(b) of the Fair Work Act 2009 (Cth) (FW Act) – construction of s 340(1)(b) of the FW Act – whether s 340(1)(b) requires a person to have presently existing workplace right – consideration of the reverse onus under s 360(1) of the FW Act – whether the primary judge erred in finding that Qantas Airways had not discharged the onus under s 360(1) of the FW Act – consideration of corporate decision-making – whether the primary judge erred in finding that a substantial and operative reason of a person who was not the decision-maker was to prevent the exercise of workplace rights by the affected employees – notice of contention – whether the primary judge should have found that the reasons of the decision-maker were infected by persons who had a substantial influence on the decision-maker – whether the primary judge erred by making the declaration in respect of non-union employees – appeal dismissed INDUSTRIAL LAW – union appeal – reinstatement – appeal from the decision of the primary judge not to make an order granting "global" reinstatement – whether primary judge erred in considering or affording determinative weight to the cost and inconvenience of reinstatement to Qantas Airways – whether the primary judge impermissibly concluded that s 545 of the FW Act required a comparison between compensation and reinstatement or whether the primary judge failed to undertake such a task – whether the primary judge erred by taking into account the absence of clarity as to the quantum of prospective compensation – whether the primary judge erred in finding or taking into account that the affected employees would be reinstated to little or no work – whether the primary judge erred in relation to the difficulties with Qantas Airways complying with a reinstatement order or further disputation – whether the primary judge erred in finding or taking into account that Qantas Airways intended to retrench the affected employees if reinstatement were ordered – appeal dismissed