Qantas workers unlawfully retrenched as Covid-19 gripped Australia in 2020 would have lost their jobs anyway as the virulent delta strain reared its head a year later, a judge has heard.
The airline is being sued by the Transport Workers’ Union in the Federal Court after laying off almost 1,700 ground staff in November 2020.
In July 2021, Justice Michael Lee found the move was designed to deprive workers of being able to bargain for a new enterprise agreement and, as such, contravened employment law.
Qantas and the union returned to court on Wednesday, when the judge heard further submissions about how much compensation should be paid to three workers who lost their jobs and were being used as test cases.
The airline previously argued the workers would have been retrenched anyway in November 2020 and should receive no payout.
There were other lawful reasons for outsourcing such as cutting company costs during the pandemic, it has said.
On Wednesday, Qantas barrister Michael Dalton SC argued if the 2020 outsourcing decision was never made, the company would have taken steps to make staff redundant in August 2021 as the delta strain further stifled domestic and international flying activity.
After an in-house tender process, workers would have eventually lost their jobs in February or March 2022, the court was told.
This situation mirrored the ‘unusual concatenation of events’ that Justice Lee found occurred in 2020 regarding Covid-19, lockdowns and border closures, Mr Dalton said.
‘Are you effectively saying I should find that essentially a certainty?’ Justice Lee asked.
‘Close to it – we say it’s very likely,’ Mr Dalton replied.
In 2021, the airline had already stood down 10,000 employees, retrenched thousands more staff and sold its land-holding in the Sydney suburb of Mascot, the court was told.
‘Everything was on the table at that time,’ Mr Dalton said.
Justice Lee said everything he had seen in the case showed a company focused on cutting costs as quickly as possible in a catastrophic set of circumstances.
‘Qantas was intent on doing everything it could to save as much money as it could in this process, irrespective of how it affected the employees,’ he said.
Representing the TWU, barrister Philip Boncardo rejected arguments that Qantas would have considered outsourcing in August 2021.
At that time, and over the next few months, the airline had announced it was expecting borders to open after the vaccine roll-out and hoped flight activity would fully take off by early 2022, Mr Boncardo said.
However, Justice Lee pointed out that these positive announcements were made when the airline had pocketed $100 million from unlawfully retrenching employees in November 2020. Â
Mr Boncardo also argued Qantas’ decision-making was infected in 2020 and there was no evidence to show its executive would have acted lawfully the following year.
In determining compensation, the judge will have to consider factors such as whether employees sought other work, what social security payments they received and whether jobs they took up paid more than their salary at Qantas.
Once the judge makes findings for the three test-case employees, it is hoped the union and airline can work out how much compensation is owed to all retrenched staff.
The TWU is also seeking penalties against Qantas, although these will be determined at a later date.
In December 2021, Justice Lee rejected a bid by the union to have the workers reinstated at Qantas after finding that proposal was impractical.
The judge’s findings that the terminations were unlawful were unsuccessfully appealed by Qantas in both the Full Court and the High Court.
The hearing continues on Thursday.