Federal Court of Australia
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
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