KIEFEL CJ, GAGELER, GLEESON AND JAGOT JJ. On 30 November 2020, while its operations were severely affected by the COVID-19 pandemic, Qantas Airways Ltd ("Qantas") announced a decision to outsource its ground handling operations at ten Australian airports ("the outsourcing decision"). The effect of the outsourcing decision was that ground handling services then being performed by employees of Qantas and employees of Qantas Ground Services Pty Ltd ("QGS"), many of whom were members of the Transport Workers Union of Australia ("TWU"), would instead be performed by staff of third-party suppliers contracted to provide those services.
The outsourcing decision was "adverse action" within the meaning of the Fair Work Act 2009 (Cth) ("the Act") because it altered the position of the affected employees of Qantas[1] and QGS[2] to their prejudice.
Qantas had sound commercial reasons for the outsourcing decision. Qantas also had additional reasons which were "substantial and operative"[3]. Those additional reasons, as found by a judge of the Federal Court of Australia (Lee J), were to prevent the affected employees from exercising workplace rights to organise and engage in protected industrial action and to participate in bargaining. The affected employees could not exercise those workplace rights at the time of the outsourcing decision. Nevertheless, it was expected at the time of the outsourcing decision that, in the absence of the outsourcing decision, the affected employees would be able to exercise and would in fact exercise those workplace rights in 2021[4].
- ↑ Section 342(1), item 1(c) of the Act.
- ↑ Section 342(1), item 3(c) of the Act.
- ↑ See General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 242; 12 ALR 605 at 619; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 at 535 [104], 540–541 [121]. See also Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 at 275–276 [163]–[164], 287–288 [204], 289 [209]; Australia, House of Representatives, Fair Work Bill 2008, Explanatory Memorandum at 234 [1458].
- ↑ Transport Workers' Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 at 324–330 [282]–[302].
