Kiefel CJ
Gageler J
Gleeson J
Jagot J
4.
On 19 November 2020, the TWU presented an IHB which was less competitive than outsourcing: the bid only offered indicative savings of approximately $100 million over five years with the possibility of additional savings. The primary judge found that there was never any real prospect that the IHB would deliver the perceived commercial benefits that were thought likely to be obtained by the proposed outsourcing (and that were confirmed following the RFP process). Even so, his Honour did not find that the IHB process was an artifice or conducted otherwise than in good faith. Rather, the process occurred because Qantas was properly advised that it was necessary under the relevant enterprise agreement.
The primary judge found that, although the outsourcing decision was highly likely to be made from at least August 2020, it was Mr David who was ultimately responsible for the decision, which was made on 27 November 2020. On 30 November 2020, Qantas announced the outsourcing decision, as well as the accompanying decision to reject the TWU's IHB.
At the time of the making and announcement of the outsourcing decision, the affected Qantas employees were prohibited by s 417 of the Act from organising or engaging in protected industrial action under s 415 of the Act because their enterprise agreement had not passed its nominal expiry date. The affected QGS employees were practically unable to take protected industrial action of any significance because the complex steps necessary to engage in protected industrial action under the Act had not been taken[1].
In this Court, Qantas emphasised its sound lawful and commercial reasons for the outsourcing decision. The primary judge found that, by the time the review was instigated in August 2020, the rewards and benefits of outsourcing for Qantas were already "manifest"[2].
In that context, Qantas highlighted three "commercial imperatives" that the primary judge found to be substantial and operative in making the outsourcing decision: (1) costs savings for the ground handling operations of around $100 million per year when things "returned to normal"; (2) provision of ground handling operations on a "cost per turn" basis (such that Qantas would only pay when an aircraft needed to be "turned" at one of the affected airports), which would
