A Federal Court judge has blasted Qantas and the Transport Workers Union while revealing the airline faces a potential $50 million-plus damages bill after ousting 1700 ground crew under the cover of COVID-19.
Justice Michael Lee said he hoped “some common sense could prevail” as he ordered the union and Qantas to mediate in a bid to calculate the total amount payable to unlawfully sacked baggage handlers and cleaners.
While handing down compensation rulings of between $30,000 and $100,000 in three tests cases on Monday, Justice Lee said it might be a “triumph of hope over expectation” that the court would now move quickly to resolve compensation and any penalties.
“Both sides have engaged in rhetoric about being willing to resolve all issues,” Justice Lee said. “The court encourages parties to settle their litigation, and it is in the interests of the administration of justice that they do so
“Vast legal costs have been expended by both sides, and particularly by Qantas, who have retained no less than five senior counsel during the course of the matter and numerous solicitors at one of Australia’s pre-eminent law firms.”
Justice Lee is grappling with the damages and penalty payable by Qantas more than three years after he first found it had denied the workers their rights under Federal industrial law.
He said the workers would have been sacked because of the airline’s “laser-like” focus on cutting costs.
The TWA focused on Qantas’ outsourcing of baggage handling and cleaning services between November 2020 and March 2021 as the airline was facing massive flight cancellations because of the COVID-19 pandemic.
Qantas unsuccessfully appealed again the initial ruling to the Full Court of the Federal Court and to the High Court.
The 1700 workers were purged while their enterprise agreement was still operational and the statutorily determined bargaining period for a new deal had not commenced.
The TWU case focused on the workers’ right to eventually bargain for a new deal.
Rejecting Qantas’ bid to overturn the decisions of Justice Lee and the Full Court, the High Court last year found the Fair Work Act prevented a party taking adverse action against a workplace right that might arise in the future.
This resulted in the matter going back to Justice Lee to work out Qantas’ punishment, a process that has started with the examination the compensation payable of three test cases of varying severity.
Publishing this framework decision on Monday, Justice Lee ordered $30,000 damages be paid to a worker suffering a relatively low amount of hurt.
He ordered a $40,000 loss for a second worker who had suffered “somewhat more serious” non-economic hurt and $100,00 for a worker who suffered “significantly more serious” in the outsourcing.
“One hopes, in the light of these reasons, the party can agree on the necessary calculations to facilitate the minimisation of disagreement,” he said.
After Justice Lee published his ruling, Qantas released a statement saying it would “work to expedite the payments”.
“Qantas has sought the assistance of the TWU in order to find a way to speed up the compensation and a mediation process will now commence,” it said.
“The group is also undertaking an actuarial review to develop an estimate of the likely total compensation amount payable.”