He said the case was simply whether any prohibited reason formed a “substantial and operative part” of Qantas’ reasons for making the decision to outsource.
The union successfully argued that senior Qantas staff were partly motivated by a desire to prevent the employees from organising and engaging in protected industrial action relating to their Enterprise Bargaining Agreement,which was due for renegotiation in early 2021.
Justice Lee said the union had argued the “dark clouds” of COVID-19 pandemic provided a “glimmer of opportunity” for Qantas to stop union members from exercising their workplace rights and rid the airline of union influence.
“The perceived financial benefits of outsourcing (which until the pandemic had not been pursued because of the risk of operational disruption),became for the first time feasible,” Justice Lee said.
Qantas maintained in the case that the outsourcing emerged only because of the impacts of COVID-19,which had a “devastating and wholly unprecedented impact upon Qantas’ operations and revenues” and led to billions of dollars in losses.
John Gissing,a group executive at Qantas,said on Friday the airline was “motivated only by lawful commercial reasons,and this will be the subject of our appeal”.
The outsourcing agreement was entered into in January this year,and by March 31 all affected Qantas employees had ceased their employment.
Justice Lee said the relationship between Qantas and the union was historically “antagonistic” and had “soured” in 2020 to the point where the airline’s chief executive officer,Alan Joyce,publicly declared the union to be “militant”.
Although Justice Lee found the workers were not targeted on the basis of their union membership,he said it is not in dispute that “the effect of the outsourcing decision would be to remove the vast majority of union members from Qantas’ business”.
The union’s barrister Mark Gibian,SC,put to Qantas executive Andrew David during the hearing that one reason for the outsourcing was that “you wished to avoid Qantas being in a position where it needed to bargain with and negotiate with the TWU in the future”.
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“That’s not the reason that we made the decision,” Mr David said.
An internal Qantas document,which formed part of the case,weighed up the pros and cons of the outsourcing decision and listed some reasons to avoid outsourcing as “the size of the job losses (2700) sticker shock” and “government risks”.
The document was later updated to reference the upcoming enterprise bargaining round,and to point out there was currently an opportunity to execute a “full exit” of ground staff,which may never present itself again.
Justice Lee found the union was entitled to a declaration that Qantas engaged in “contravening conduct” by outsourcing the jobs. The exact form of this declaration,and any relief the union is entitled to,will be decided at a later date.