Qantas workers who took unlawful retrenchments as Covid-19 gripped Australia in 2020 would have lost their jobs anyway when virulent Delta pressure emerged a year later, a judge has heard.
The airline is being taken to federal court by the Transport Workers’ Union after laying off nearly 1,700 ground workers in November 2020.
In July 2021, Judge Michael Lee found that the measure was intended to deprive employees of the opportunity to negotiate a new enterprise agreement and as such was contrary to labor law.
Qantas workers who took unlawful retrenchments as Covid-19 gripped Australia in 2020 would have lost their jobs anyway when virulent Delta pressure emerged a year later, a judge has heard (file photo)
Qantas and the union returned to court on Wednesday, when the judge heard further submissions on how much compensation should be paid to three workers who lost their jobs and were used as test cases.
The airline previously argued that employees would have been retrenched in November 2020 anyway and should not receive payouts.
There were other legitimate reasons for outsourcing, such as reducing operating costs during the pandemic, the report said.
On Wednesday, Qantas lawyer Michael Dalton SC argued that if the 2020 outsourcing decision had never been made, the company would have taken steps to lay off staff in August 2021 as delta pressure would further hamper domestic and international flying operations.
Following an internal tender process, the workers would ultimately have lost their jobs in February or March 2022, the court was told.
This situation reflected the “unusual chain of events” that Judge Lee found in 2020 relating to Covid-19, lockdowns and border closures, Mr Dalton said.
“Do you actually mean that I should consider that a certainty?” Judge Lee asked.
“Close to it – we say it’s very likely,” Mr Dalton replied.
By 2021, the airline had already laid off 10,000 employees, cut thousands of additional staff and sold its land holdings in the Sydney suburb of Mascot, the court was told.
“Everything was on the table at that point,” Mr. Dalton said.
Judge Lee said everything he had seen in the case showed a company focused on cutting costs as quickly as possible under catastrophic circumstances.
“Qantas intended to do everything it could to save as much money as possible in this process, regardless of the impact on employees,” he said.
Qantas is being taken to federal court by the Transport Workers’ Union after laying off almost 1,700 ground staff in November 2020 (file photo)
Lawyer Philip Boncardo represented the TWU and rejected arguments that Qantas had considered outsourcing in August 2021.
At the time, and in subsequent months, the airline had announced that it expected borders to open after the vaccine rollout and hoped flight activity would fully commence in early 2022, Mr Boncardo said.
However, Judge Lee pointed out that these positive announcements were made when the airline had pocketed $100 million by unlawfully retrenching employees in November 2020.
Mr Boncardo also argued that Qantas’ decision-making in 2020 was tainted and that there was no evidence that the executive would have acted lawfully the following year.
When determining damages, the judge will have to take into account factors such as whether employees sought other employment, what social benefits they received and whether jobs they took paid more than their Qantas salary.
Once the judge makes findings for the three test workers, it is hoped that the union and the airline can find out how much compensation is owed to all the retrenched staff.
The TWU is also seeking sanctions against Qantas, although these will be determined at a later date.
In December 2021, Judge Lee rejected a union bid to reinstate workers at Qantas after finding the proposal impractical.
Qantas unsuccessfully appealed against the judge’s findings that the terminations were unlawful to both the Full Court and the Supreme Court.
The hearing will continue on Thursday.