Under the Fair Work Act 2009 (FW Act), employers are prohibited from terminating an employee due to a prohibited reason. Such prohibited reason may include a variety of different causes, such as discrimination, industrial activity and the exercise of workplace rights. This is often referred to as a ‘general protections’ claim.
An employer will be in breach of the general protection provisions of the FW Act if the termination was because of, or substantially because of, the prohibited reason. This is often referred to as ‘adverse action’ or an ‘unlawful termination’.
The Qantas case focussed on whether Qantas had unlawfully terminated staff, in breach of the general protections provisions, when it chose to outsource its operations – and in doing so, denied terminated staff the ability to undertake, or participate in, a future workplace right – namely, protected industrial action and/or negotiate for an enterprise agreement.
Facts of the case
In November 2020, at the peak of the pandemic, Qantas sought to restructure its operations by terminating the employment of ground crew, baggage handlers, cleaners and drivers, and in its place, outsource these functions to a third-party supplier. Qantas argued that the decision to outsource and essentially restructure the business was done to improve the airline’s ability to survive and subsequentially recover from the extensive travel restraints during the pandemic lockdowns, and while vaccines were still under development. It estimated that this decision would save it approximately $100 million a year in operating costs.
Prior to the decision to dismiss staff, Qantas tendered bids, both internally and externally. Ultimately, the external bids were more competitive, and Qantas decided to proceed with the outsourcing exercise.