A judge has called "a tad unrealistic" union claims that Qantas workers, unlawfully retrenched during the COVID-19 pandemic, would still have their jobs if the airline hadn't breached the law.
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The Transport Workers Union has sued Qantas in the Federal Court after almost 1700 workers were retrenched and then outsourced in November 2020 as the pandemic gripped Australia.
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.
After these findings were unsuccessfully appealed by Qantas to both the Full Court and the High Court, the case returned to the Federal Court for further hearings over compensation for sacked employees.
The union is also seeking penalties against the airline.
Justice Lee is considering the test cases of three workers fired by Qantas to determine how much, if any, compensation is payable.
As the hearing continued on Monday, the union's barrister Mark Gibian SC said compensation should be paid out on the basis that employees would still be working at Qantas if they had not been made redundant in 2020.
"Doesn't that fly in the face of reality?" Justice Lee asked.
Documents from Qantas shown to the court, including from then CEO Alan Joyce, showed the airline focused on cutting costs in 2020 and 2021, he pointed out.
"I must say intuitively I find it very difficult to believe they'd still be working there," the judge said.
Justice Lee also questioned whether any payout should be made at all to workers who had not taken reasonable steps to find other employment.
"(If) there was a job on offer and they said 'well I'm not interested', where do we go?" he asked.
Mr Gibian said the employee still suffered some financial loss and it would be up to the court to determine the appropriate payout.
Justice Lee also asked whether the amount he could order the airline to pay in pecuniary penalties would affect the compensation paid to staff.
He argued that this could prevent employees from receiving an amount worth more than the loss they had suffered.
Mr Gibian disagreed with that approach.
"It would be denying the individual who has in fact suffered loss a compensatory order," he said.
"No, it would be denying them an inappropriate order in those circumstances," the judge replied.
Justice Lee allowed Qantas to expand its case aimed at limiting the total compensation payable to affected workers.
The airline now says that staff could have been laid off either in November 2020 or August 2021.
In December 2021, Justice Lee rejected an application by the TWU to have the workers reinstated at Qantas after finding that proposal was impractical.
Qantas barrister Richard Dalton QC argued the court could find workers would have been retrenched in November, even without the unlawful reason of preventing union action.
If that was the case, the staff suffered no loss and needed no compensation, he said.
There was also the possibility that workers would have been laid off at later dates, particularly as the delta strain of COVID-19 spread through Australia in 2021 and people stopped flying again, Mr Dalton told the court.
In listening to Qantas' submissions on how the court should consider what happened ahead of November 2020 if the unlawful conduct did not take place, Justice Lee struggled to understand Mr Dalton's arguments.
"I'm lost," he said.
The hearing will continue on May 29.
Australian Associated Press
