"Upholding Qantas’s decision to sack staff would weaken workplace rights, union warns", 20 Feb 2023

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...

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...

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”...

[Additionally], [u]nder 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...

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.