Transport Workers' Union of Australia v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216

FEDERAL COURT OF AUSTRALIA Transport Workers' Union of Australia v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216 File number: NSD 1309 of 2020

Judgment of: LEE J

Date of judgment: 21 October 2024

Catchwords: INDUSTRIAL LAW – where Qantas made a decision to outsource its ground handling operations at ten Australian airports in the height of the COVID-19 pandemic – where the outsourcing decision was found to be an "adverse action" in contravention of s 340(1)(b) of the Fair Work Act 2009 (Cth) – where the question of what, if any, economic or non-economic loss is compensable pursuant to ss 545(1) and 545(1)(b) of the FWA, being "because of" Qantas' contravention falls to be determined by reference to three "test case" individuals – where the intention and motivation of Qantas in Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 and Transport Workers' Union of Australia v Qantas Airways Ltd (No 4) [2021] FCA 1602; (2021) 312 IR 133 considered to the extent relevant to the question of compensation – where principles relevant to ss 545(1) and 545(2)(b) considered – where the proper approach to determining the appropriate counterfactual considered – where Qantas' "second counterfactual" found to be the most likely counterfactual – where contingencies arising on the second counterfactual considered – specific circumstances and appropriate compensation relevant to the "test case individuals" considered – orders providing for statutory compensation for the test case individuals made

Acts Interpretation Act 1901 (Cth) s 33(2A) Legislation: Fair Work Act 2009 (Cth) ss 340(1)(b), 341, 346, 361(1), 415, 417, 437, 438, 443, 449, 459, 545, 545(1), 545(2), 545(2)(b), 546 Federal Court of Australia Act 1976 (Cth) Pts IVA, VB, ss 33ZB, 37M(1), 37N(1), 37N(2), s 37P(2) Trade Practices Act 1974 (Cth) s 82