High Court affirms employees’ workplace rights

High Court affirms employees' workplace rights

High Court affirms employees’ workplace rights

In a significant decision, a full bench of the High Court has determined that Qantas took adverse action against a group of employees after making the decision to outsource their work. The ruling confirms that adverse action can occur even before the exercise of a workplace right.

As noted in the lead judgement,

“In short, a person takes adverse action against another person for a substantial and operative reason of preventing the exercise of a workplace right by the other person contravenes s340(1)(b), regardless of whether that other person has the relevant workplace right at the time the adverse action is taken”.

The appeal judgement centred upon the decision of Qantas in 2020 to outsource their ground handling operations, consisting of ramp, baggage and fleet presentation work, including baggage handling and aircraft cleaning.

Suffering a significant downturn in revenue during the COVID-19 pandemic, Qantas contemplated extending the outsourcing of the work to third-party contractors for all of its airport operations, which comprised ten remaining airports.

Initially, Qantas notified the existing employees of the likely change and offered them the opportunity to submit an in-house bid template to maintain the work for a further five-year period. However, the bid was less competitive than outsourcing.

The affected employees were covered by two enterprise agreements, one with a nominal expiry date of 31 December 2020 and the other agreement of 1 September 2019. Consequently, the former group were prohibited from organising or engaging in protected industrial action because the agreement had not exceeded its nominal expiry date.

On 27 November 2020, Qantas made the decision to outsource the work.

As noted by Justices Gordon and Edelman,

“Qantas failed to prove that its outsourcing decision was made for reasons not including the substantial and operative reason of preventing the exercise of a workplace right … which was relevantly the entitlement of the employees affected by the outsourcing decision to engage in enterprise bargaining following the expiry of the enterprise agreements and to organise and engage in protected industrial action and a protected action ballot.”

As the judges further noted,

The appeal is concerned with). The question is whether that provision extends to prevent the exercise of a workplace right if that right is one that might exist in the future. The answer is ‘yes’. The text ‘to prevent the exercise of a workplace right’ extends to the prevention of the future exercise of a workplace right that might exist in the future”.

It is expected that the Transport Workers Union will seek significant compensation and reinstatement on behalf of the terminated workers, as well as pursue damages against Qantas.

Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27 (13 September 2023)

For queries about employees, contractors, outsourcing, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 384.0923

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