Qantas has launched a legal challenge in the High Court in a bid to overturn a judgment relating to its controversial decision to outsource more than 1600 workers during the COVID-19 pandemic.
However a court ruling in favour of the airline could eventually be undone by federal legislation.
Qantas is appealing two rulings by the Federal Court, which found the outsourcing of baggage handlers, cleaners and ground staff was illegal.
The first hearing in the High Court began on Tuesday.
Qantas was found to have breached the Fair Work Act in outsourcing its ground operations to avoid enterprise bargaining rights, after the Transport Workers’ Union took legal action against the carrier.
The airline, which retrenched workers in 2020, lost billions of dollars due to the pandemic, which decimated the aviation sector.
A Qantas spokesman said the airline’s ability to legally outsource was to save more than $100 million a year when its survival wasn’t guaranteed.
“When we made this decision we were still in the depth of the pandemic and there was very little certainty about when our recovery would begin,” he said.
The spokesman said Qantas rejected the Federal Court’s ruling that it was not convinced that preventing protected industrial action in 2021 was not relevant in the decision to outsource.
“We’ve always acknowledged that it would have been very tough on our ground handlers and the thousands of other employees who lost jobs because of the pandemic,” he said.
Qantas argues it could not have breached the workplace rights of the employees, as they did not have the right to take protected industrial action at the time of the decision to outsource.
The union’s national secretary Michael Kaine said the federal court decision was strong and “morally right”.
“We hope the High Court dismisses Qantas’ appeal and upholds effectively the intention of the Fair Work Act,” he said.
Labor senator Tony Sheldon, a former TWU national secretary, said the government had intervened in the case at a critical point.
Senator Sheldon said if the court ruled in favour of Qantas “the immediate response will be to draft legislation”.
“Quite clearly, this (Fair Work) legislation was put in by the Australian public through the Australian parliament and the Australian parliament will have the final say,” he told reporters outside the court.
Maurice Blackburn principal lawyer Giri Sivaraman said Qantas lost the case on the facts.
“Now it’s trying a legal argument to get the High Court to reduce protections in the Fair Work Act to make its actions lawful,” he said.
“If Qantas wins, protections for all workers across Australia will be reduced.”
A judgment is not expected to be handed down for some months after the hearings.
-AAP
