Upholding Qantas’s decision to sack staff ahead of industrial action would create “uncertainty” about accessing workplace rights and water down protections against other forms of discrimination, such as sacking workers before they accrue parental leave.
That is the submission of the Transport Workers’ Union in the airline’s high court case seeking to overturn the finding that it illegally outsourced 1,700 ground handler jobs.
Qantas is fighting on two fronts, against the union, which argues the protection against adverse action is not limited to “presently existing” rights, and against the workplace relations minister, Tony Burke, who has sought to intervene in the case.
On Wednesday the airline filed a notice arguing Burke has no automatic right to intervene, in a bid to force him to seek leave for submissions expected to favour the TWU.
Qantas hopes to overturn a full federal court decision exposing it to a mammoth compensation bill for laying off staff at 10 airports in November 2020. In July 2021 the federal court ruled Qantas’s outsourcing of the workers was in part driven by a desire to avoid industrial action, which is a breach of the Fair Work Act.
In the high court, Qantas has argued that its ground staff were prohibited from taking protected industrial action until their existing pay deal expired on 31 December 2020.
The law “simply does not extend so far as to protect a person from adverse action in respect of rights that they do not presently have”, it submitted.
In its submission, published by the court on Friday, the TWU argued that Qantas’s argument would permit “employers, unions or employees to take action to ensure that workplace rights never arise”.
The TWU submitted that, if Qantas were correct, it could have “expressly and unabashedly” announced it had outsourced its staff for intending to take industrial action, which it labelled an “absurd outcome that is not supported by the statutory text”.
The TWU submitted the airline’s interpretation would have “remarkable results”, such as giving the green light to unions to coerce non-members to join industrial action before the union had fulfilled procedural requirements to go on strike.
“Alternatively, an employer could seek to coerce a new employee who has indicated an intention to get pregnant to not exercise a right to take parental leave by telling her that if she decided to try and take parental leave, she would have no future with the employer.”
Under Qantas’s interpretation “a woman who announces that she and her partner have decided to have a child and she intends to fall pregnant” could be terminated by her employer because “she does not have a ‘presently existing’ right to take parental leave”, the union said.
A pregnant employee who is yet to fulfil the 12-month period of service for parental leave could also be sacked before that date and the employer would “escape liability” under the Fair Work Act. However, pregnancy discrimination also contravenes the Sex Discrimination Act.
“Take the example of an employee known to be a volunteer firefighter. Before the summer season, on Qantas’s interpretation the employer could dismiss the employee for the sole purpose of preventing the exercise of the right to take community service leave.”
After Burke filed a notice of intervention in January, the airline wrote to him arguing the Fair Work Act does not give him power to do so for an appeal. It invited him to seek leave from the court instead.
Burke rejected that claim in a letter to Qantas on 10 February and intends to continue the intervention.
In January Tony Sheldon, the chair of the Senate’s employment legislation committee and a former TWU national secretary, said the government had an obligation to stand by its interpretation of the act.
“This is a matter that will affect many Australians into the future,” the Labor senator told Guardian Australia.
“The act has, in my view, the intent that workers’ interests will be protected and that in circumstances such as this, after two court findings in their favour, they can get their jobs back … that there is a remedy.”
In a statement in December, Qantas said it had always maintained “the decision to outsource our ground handling function was based on lawful commercial reasons in response to the unprecedented impact of the Covid crisis”.
Qantas reply submissions are due in March.
