If a decision is made for multiple reasons, it is a breach of the Act if any of the “substantial and operative” reasons is a prohibited reason.
The Facts
In November 2020, while their operations were severely affected by COVID-19, QANTAS announced a decision to outsource its ground handling operations at 10 Australian airports. The Transport Workers Union commenced proceedings against QANTAS alleging that QANTAS’ decision to dismiss those workers was a breach of the Act. The proceedings have since been heard by a judge in the Federal Court, the full bench of the Federal Court and now by the High Court.
The various courts before whom the matter was heard were satisfied that QANTAS had sound commercial reasons for the outsourcing decision. However, the courts also accepted that QANTAS was partly motivated by a desire to prevent the ground staff from exercising their workplace rights to organise and engage in industrial action.
The High Court proceedings
The matter ended up before the High Court because of a legal technicality. At the time QANTAS made its decision to outsource the ground handling operations, its workers were prohibited from engaging in industrial action because QANTAS’ existing enterprise agreement had not expired.
QANTAS argued:
- a workplace right cannot be protected by the Fair Work Act until it actually exists. If a right only exists in certain circumstances then the Fair Work Act does not protect it until those circumstances arise; and
- that it is not a breach of the Act for an employer to take advantage of a time period set out in the Act. In this case, it was not a breach for QANTAS to makes its decision during the period of time during which the workers could not take industrial action.
The High Court rejected both arguments, finding that the proper interpretation of the Fair Work Act’s prohibition against taking adverse action against workers “to prevent the exercise of a workplace right” extends not just to rights that can be exercised now but also to rights that might be exercisable in the future.
QANTAS’s appeal was therefore dismissed and will return to the Federal Court for that court to consider what remedy should be awarded. Previous comments by the court suggest it’s unlikely the workers will be reinstated (after all, three years have passed) but QANTAS could be facing a hefty order for compensation.
Takeaways
The High Court’s decision is a useful reminder of the protections offered by the Fair Work Act. Employers should take steps to familiarise themselves with those protections. The Fair Work Ombudsman’s website would be a good place to start.
Where there is a chance those protections will be breached by a workplace decision (or where a worker might allege a breach), specific legal advice should be sought.
