Transport Workers' Union of Australia v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216

Transport Workers' Union of Australia v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216

The appropriate counterfactual is that, but for the contravention of s 340(1)(b), Qantas would have lawfully outsourced its ground handling operations at ten airports by late 2021, resulting in termination of the affected employees (including three test case individuals) approximately twelve months after their actual dismissal. Accordingly, compensable loss is limited to the lost opportunity for continued employment during this period (plus consequential non-economic loss), not until retirement or an indefinite period. The onus was on the claimants to prove loss, and the Court awarded compensation accordingly.

Parties
Applicant: Transport Workers' Union of Australia; First Respondent: Qantas Airways Limited; Second Respondent: Qantas Ground Services Pty Ltd
Jurisdiction
Australia
Judgment Date
21 October 2024
Procedural Posture
Compensation Claim / Post Liability; Compensation Determination for Test Cases
Outcome
Application for compensation for test case individuals allowed in part; orders for statutory compensation for identified loss; further hearing listed to quantify amounts; directions for parties to confer and provide agreed or competing orders.
Legal Topics
Adverse Action, Outsourcing, Statutory Compensation, Fair Work Act – S 340(1)(b), S 545, Economic and Non Economic Loss
Employment and Industrial Relations Adverse Action Outsourcing Statutory Compensation Fair Work Act – S 340(1)(b), S 545 Economic and Non Economic Loss

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Parties

Transport Workers' Union of Australia

Applicant

Qantas Airways Limited

First Respondent

Qantas Ground Services Pty Ltd

Second Respondent

Procedural Posture

Compensation Claim / Post Liability; Compensation Determination for Test Cases

Legal Issues

  1. 1 What, if any, economic or non-economic loss is compensable pursuant to ss 545(1) and 545(2)(b) of the Fair Work Act 2009 (Cth), arising from the proven contravention by Qantas of s 340(1)(b)?
  2. 2 What is the appropriate counterfactual for the assessment of loss?
  3. 3 What amount of individual compensation orders are appropriate for the test case individuals?

Ratio Decidendi

The appropriate counterfactual is that, but for the contravention of s 340(1)(b), Qantas would have lawfully outsourced its ground handling operations at ten airports by late 2021, resulting in termination of the affected employees (including three test case individuals) approximately twelve months after their actual dismissal. Accordingly, compensable loss is limited to the lost opportunity for continued employment during this period (plus consequential non-economic loss), not until retirement or an indefinite period. The onus was on the claimants to prove loss, and the Court awarded compensation accordingly.

Court Disposition

Application for compensation for test case individuals allowed in part; orders for statutory compensation for identified loss; further hearing listed to quantify amounts; directions for parties to confer and provide agreed or competing orders.

Orders

  • Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth), counsel to confer to calculate the amount of statutory compensation for each test case individual in conformity with these reasons.
  • Conferral required by 4 November 2024; minutes of orders or submissions to be provided by 8 November 2024.