FEDERAL COURT OF AUSTRALIA

Transport Workers’ Union of Australia v Qantas Airways Limited (No 4) [2021] FCA 1602

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s claim for relief by way of orders for general reinstatement of affected employees (as identified in the Points of Claim document filed on 25 August 2021 at prayers [1]–[5]) is dismissed.

2.    The balance of the proceedings be adjourned for a case management hearing on a date to be fixed after the determination by the Full Court of the application for leave to appeal (and if leave be granted, the appeal) in proceeding NSD 927 of 2021.

3.    Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and r 36.03 of the Federal Court Rules 2011 (Cth), the applicant be given leave to appeal order 1 above, subject to any notice of appeal being filed, served and provided by email to the Associate to Justice Perram on or before 4pm on 7 January 2022.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A     INTRODUCTION

1    These reasons assume a familiarity with my two judgments as to liability in relation to this dispute: Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (principal judgment or PJ) and Transport Workers’ Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012; (2021) 308 IR 333 (declaratory judgment or DJ).

2    This judgment deals with part of the relief sought by the applicant (Union). Over the opposition of the first respondent (Qantas), on 1 October 2021, I made an order that pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth) (FCR) and s 37P(2) of the Federal Court of Australia Act 1976 (Cth) (FCAA), the question of whether the Union is entitled to relief by way of orders for general reinstatement of those of the affected employees who were retrenched (outsourced employees) (as identified in the Points of Claim document filed on 25 August 2021 at prayers [1]–[5]) be determined separately and prior to any other claim for relief (Reinstatement Hearing). The balance of relief sought by the Union (relating to compensation and pecuniary penalties) was deferred.

3    I explained the reasons for taking this course in Transport Workers’ Union of Australia v Qantas Airways Limited (No 3) [2021] FCA 1339. In short, the opposition of Qantas reflected its desire to seek a deferral of consideration of any questions as to relief until after the Full Court has heard and determined an application for leave to appeal (and if leave be granted, an appeal), listed to be heard on 24 and 25 February 2022. The delay and deferral proposed by Qantas was not only rejected by me in making case management orders, but also by Perram J who, in rejecting an application for a stay of this proceeding, accepted in Qantas Airways Limited v Transport Workers’ Union of Australia [2021] FCA 1136 (at [9]) that:

… any delay in the trial of the reinstatement aspect of the case will be prejudicial to the [Union]. There is a real risk that the relief to which it will be entitled will be imperilled the longer that it takes to determine the question of reinstatement.

4    After hearing full argument, I have concluded it is appropriate to determine the issue of the entitlement to the “global” reinstatement relief sought and pressed by the Union and, notwithstanding the detailed submissions made on behalf of the parties, to deliver judgment immediately. In addition to not imperilling this aspect of the relief sought by delaying adjudication, this course is appropriate for four further reasons.

5    First, we are deep into Advent and it is in the interests of all persons affected by the relief sought in this case to have clarity as to their position prior to the imminent long Court vacation. Leaving aside the consequences for the parties, the result has potentially significant consequences for the 1683 outsourced employees and their families; particularly those who earnestly desire a return to work. I have interrupted a part-heard matter which runs to Christmas Eve to hear this matter, and unless I deliver judgment immediately it will not be delivered prior to the end of the year.

6    Secondly, the delivery of judgment now will provide the opportunity for the disappointed party to seek to have any appeal from the orders I will now make, determined at the same time as the current application for leave to appeal. Needless to say, it is ultimately a matter for the Full Court as to whether or not it wishes to determine the application for leave to appeal and any appeal from the primary order made at this Reinstatement Hearing at the same time as the appeal in respect of liability; but a speedy delivery of judgment on the reinstatement relief preserves this option for the Full Court.

7    Thirdly, I have had the benefit of detailed and skilled written submissions served in advance of the hearing by each party as to the law, which has allowed me, during the hearing, to focus on the evidence adduced and the real issues that emerged at the Reinstatement Hearing.

8    Fourthly, following extensive oral closing submissions and a short adjournment, I have now reached a clear view as to the merits of the global restatement relief sought by the Union, and the outcome is not attended by doubt.

9    I propose to divide the balance of these reasons into the following headings:

    B    THE UNION, STANDING AND CONSEQUENCES

    C    FACTUAL FINDINGS

    D    THE APPLICABLE LAW

    E    THE PROCEDURAL HISTORY

    F    THE UNION’S CONTENTIONS

    G    CONSIDERATION

    H    CONCLUSION AND ORDERS

10    As can be seen, prior to coming to the relevant facts, it is useful to say something about the basis upon which relief can, and is, being sought by the Union. In maintaining its claim, the Union is acting in what has sometimes been described as a “representative capacity” but, as I will explain, this shorthand description tends to obscure the precise role it is performing in seeking relief, including the reinstatement relief, and the legal consequences for outsourced employees of the grant or refusal of that relief.

B     THE UNION, STANDING AND CONSEQUENCES

11    Section 539(2) of the Fair Work Act 2009 (Cth) (FWA) identifies persons who may apply for orders in relation to contraventions of specified provisions. Item 11 of s 539(2) deals with contraventions of Part 3-1 of the FWA, including contraventions of s 340(1). An “industrial association” has standing to seek relief in relation to contraventions of s 340(1). The Union, of course, is an “industrial association” as that expression is defined in s 12 of the FWA.

12    The entitlement to make an application is, however, subject to ss 540 and 544 of the FWA. The latter provision imposes a time limitation and the former, by s 540(6), imposes a pre-condition on the ability of an industrial association to apply for orders under Div 2 of Pt 4-1, being that an industrial association may apply for relief in relation to a contravention of a civil remedy provision only if one or other of two preconditions are established. These are, relevantly, that: (a) the industrial association is affected by the contravention; or (b) the contravention relates to a person, and the person is affected by the contravention and the industrial association is entitled to represent the industrial interests of the person.

13    It is common ground that the present proceeding was brought within time and, at the very least, the Union is entitled to represent the industrial interests of persons affected by Qantas’ contravention.

14    Given that as at 31 December 2020, only 716 of the original 1820 affected employees (of which 1683 were outsourced employees) were members of the Union, it is worth noting that the entitlement to represent the industrial interests of a person does not require that the person be a member of the relevant industrial association. The fact that a person is eligible for membership of an industrial association in accordance with its eligibility rules is sufficient to make the industrial association entitled to represent the industrial interests of the person: see Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456 (at 461 [1], 467–469 [25]–[28] and 472 [36] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ). It is common ground the Union has an eligibility to seek relief on behalf of all outsourced employees (irrespective as to whether they were, or are, members of the Union).

15    But the question of eligibility to bring an application is not the same thing as identifying the capacity in which the application is brought. The Union is seeking relief of a particular type. That relief was relevantly framed in the amended originating application as a “claim” by the Union that Qantas do certain things including reinstate outsourced employees (prayer 2A) and a “claim” by the Union for “[o]rders for compensation for economic and non-economic loss” (prayer 4). More detailed relief of a similar nature is now specified in the Points of Claim filed on 25 August 2021. The Union’s contention is that these proposed orders, if made, would promote the purposes of the FWA by facilitating compliance with the law, including the statutory norm proven to have been breached. In this respect, seeking the relief serves a perceived public purpose. But the relief (if made or refused) would also directly affect the interests of strangers to the proceeding, that is, the outsourced employees. Hence the forensic decision as to what relief is sought can affect the interests of the outsourced employees. This can be seen most obviously by the fact that the Union sought an order (initially only if reinstatement is refused), that Qantas pay to third parties an amount of money said to represent compensation for loss suffered by those third parties.

16    At first glance, it might be thought that to the extent it is acting to progress such claims (including compensation for loss suffered by the third parties), the Union is performing a representative function, quite similar to other representative functions known to the law, being those described by the High Court in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 (at 524 [40] per French CJ, Bell, Gageler and Keane JJ):

… representation by an agent, representation by a trustee, representation by a tutor or a guardian, and representation by another person under rules of court which permit representation of numerous persons who have the same interest in a proceeding. To those traditional forms of representation can be added representation by a representative party in a modern class action.

17    But any such comparison needs to be carefully examined and not decontextualised.

18    The Union is registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act). It is a body corporate, separate and distinct from its members: s 27. It acts in an independent capacity: R v Dunlop Rubber Australia Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71 (at 81 per Dixon CJ, Webb, Fullager, Kitto and Taylor JJ). It is given standing in order to allow it to pursue its legitimate industrial objectives.

19    As French CJ, Bell, Gageler and Keane JJ noted in Tomlinson (at 524 [40]), each of the “traditional” forms of litigation representation:

… is typically the subject of fiduciary duties imposed on the representing party or of procedures overseen by the court (of which opt-in or opt-out procedures and approval of settlements in representative or class actions are examples), or of both, which guard against collateral risks of representation, including the risk to a represented person of the detriment of an estoppel operating in a subsequent proceeding outweighing the benefit to that person of participating in the current proceeding.

20    There is no precise or comprehensive definition of the circumstances in which a person is considered a fiduciary in their relations with another, but a fiduciary relationship is, of course, characterised by trust and confidence, and a person will be in a fiduciary relationship with another when and insofar as that person has undertaken to perform such a function for, or has assumed such a responsibility to, another as would thereby reasonably entitle that other person to expect that they will act in the other person’s interest to the exclusion of their own interest: see Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 (at 96–97 per Mason J); News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 (at 538–541 per Lockhart, von Doussa and Sackville JJ). It is common ground in this case that the Union is entitled to act on its own account and in its own interests (subject to the requirements of the FWRO Act) and is not acting in the conduct of this litigation as a fiduciary of any of its members or the outsourced employees more generally.

21    But even absent characterisation as a fiduciary, the question of whether some substantive obligation exists to the extent it is dealing with the interests of third parties by the Union, which has carriage of litigation directly affecting the interests of third parties (and whose interests it says it represents) does not appear to me to have a straightforward answer, notwithstanding the joint position adopted by the parties. It strikes me as intuitively odd that any species of litigation representative, even one with its own distinct interests, is entirely at liberty to pursue its own interests in litigation, even if those interests directly conflict with the interests of third parties in the same litigation (which in this case, as we know, includes persons who have no legal relationship with it). Whether equity could have some role to play in this regard is unnecessary to consider for present purposes. It suffices to note that the complexity in identifying the metes and bounds of any such obligation is evident in the admittedly quite different context of the role and the content of duties of a representative in Chancery representative proceedings, or in class actions under Pt IVA of the FCAA (or its cognates).

22    It is worth noting, however, that one aspect of the representative nature of this case may be relevant: that is, how and if the outsourced employees will be bound by any determination in this proceeding as to their entitlements. In this respect, reliance was placed by both parties on Tomlinson. In that case, the Fair Work Ombudsman had brought a case in this Court alleging that a company had failed to pay Mr Tomlinson and other employees amounts owing upon termination of employment. An issue determined in the proceeding was whether the company was the employer of Mr Tomlinson and the other employees. That issue was determined adversely to the company and orders were made requiring it to pay specified amounts to Mr Tomlinson and other employees: at 512–513 [8]–[9] per French CJ, Bell, Gageler and Keane JJ. Mr Tomlinson subsequently brought a personal injury claim on the basis that the company was not his employer and he was employed by another entity: at 513–514 [10] per French CJ, Bell, Gageler and Keane JJ). The company contended that Mr Tomlinson was estopped from doing so by reason of the judgment of the Federal Court. The High Court rejected the argument. In bringing the Federal Court proceeding, the Fair Work Ombudsman was acting pursuant to a statutory power to commence proceedings to enforce the FWA and it did not represent the legal interests of Mr Tomlinson in a sense which gives rise to an estoppel (by seeking orders that the company pay Mr Tomlinson and other employees amounts which the company had failed to pay): at 525–526 [44]–[47] per French CJ, Bell, Gageler and Keane JJ, and at 544 [114] per Nettle J.

23    Neither party contends that the outsourced employees are privies of the Union in any relevant respect. Irrespective of the existence and content of any obligations of Qantas to the outsourced employees in advancing the claims for relief, no party suggests that the affected third parties, as non-parties to the litigation, are bound at law or in equity (such as would be the case by a s 33ZB “statutory estoppel” in a class action under Pt IVA of the FCAA or in equity in a Chancery representative proceeding). This may have significance at a later stage of this, or other, litigation. For reasons I will explain, it may also have relevance in a case where, because of some disentitling conduct by the “representative”, discretionary relief should be denied on the application of the “representative”, and yet the consequences of the disentitling conduct should not be visited on the persons represented. As will become evident, this is not a far-fetched possibility (but one that ultimately does not need to be resolved in this case, for reasons I will explain).

C     FACTUAL FINDINGS

C.1    Background and Sources of Findings

24    Given: (a) the considerable volume of unnecessary evidence filed on the liability hearing by both parties and; (b) the complaint by Qantas (which I considered without foundation) that there was insufficient time for it to prepare evidence for a hearing this year, I required the legal representatives to attempt to agree upon all relevant non-contentious facts prior to any time being spent preparing evidence that would be the subject of dispute. To ensure that this process worked efficiently, I made the following three orders:

2.    … the legal representatives for the parties at the Reinstatement Hearing are to confer, under the direction and supervision of a Senior Judicial Registrar of the Court, and attempt to agree on and produce a document entitled “Agreed Facts” (Agreed Facts) which, in narrative form, identifies relevant facts in respect of which there is agreement or no contest between the parties (Conferral).

3.    The legal representatives for the parties participating in the Conferral are to do so in good faith and consistently with their obligations under Pt VB of the Act (including by assisting in facilitating the narrowing of issues by providing informal production of documents requested for a legitimate purpose).

4.    The Conferral will continue until the Senior Judicial Registrar forms the view that it should be concluded …

25    A statement of agreed facts was prepared and a final version provided to the Court (and was admitted as Exhibit A on the Reinstatement Hearing) with each fact being an “agreed fact” within the meaning s 191 of the Evidence Act 1995 (Cth) (EA).

26    The document is a useful one and, subject to one matter to which I will make reference below as to the effect of those agreed facts, the parties and those that advise them should be commended for the constructive way they engaged in the conferral and drafting process, which was consistent with their duties to narrow the scope of the factual issues required to be the subject of affidavit evidence or the tender of documents.

27    I will divide the balance of this section of my reasons into three parts: first, I will provide a broad summary of the facts found in accordance with the agreement of the parties; secondly, I will detail my approach to one aspect of the Union’s evidence; and thirdly, I will set out additional factual findings I make on the basis of the evidence admitted. To these facts must, of course, be added the facts found in my previous judgments (to the extent that they are relevant). In this last regard, unsurprisingly given the nature of the relationship between Qantas and the second respondent (QGS), it was not suggested that QGS ought not to be bound by the findings made prior to it being joined as a party.

C.2    Relevant Agreed Facts

28    The agreed facts are set out comprehensively and in granular detail in the appendix to these reasons, which I find for the purposes of this proceeding. Drawing upon those detailed facts (and adopting the definitions in the annexure), it is worth emphasising the following nine matters:

(1)    Qantas Airports Ground Operations was a so-called “business function” within Qantas and provided ground handling services. Work performed on Qantas aeroplanes represented around 73% of ground handling activity within Qantas Airports Ground Operations.

(2)    At the time of the outsourcing decision, by outsourcing, Qantas estimated it could eventually achieve over $100m per annum in savings when compared to pre-COVID Ground Operations.

(3)    If reinstatement relief was obtained as sought, Qantas would need to re-create substantially its Qantas Airports Ground Operations business, a course that would include: (a) capital expenditure; (b) buying back ground services equipment (GSE); (c) making lease arrangements; and (d) recruiting up to 50 ground operations executive managers across 10 ports. Further, a new labour model may also need to be designed to implement operational processes to support an integrated work pattern involving third party ground handling companies (contractors) and QGS/Qantas employees performing the same work.

(4)    Qantas has entered into contracts with the contractors for the provision of ground handling services (Ramp and Baggage, and Fleet Presentation) previously performed by the affected employees at each of the Airports, but if those contracts were terminated in accordance with their terms, the contractors will offer Qantas the option to purchase the relevant GSE.

(5)    Qantas made an unprecedented $1.826 billion loss before tax for FY2021 and has reported approximately $5 billion in cumulative statutory losses for FY2020 and FY2021 (which is expected to grow).

(6)    Qantas has raised in excess of $2.5b in debt and $1.4b in equity, and an additional $0.5b in debt has been announced through an unsecured bond placement. This funding has been necessary to support the Qantas Group’s operations through the COVID-19 pandemic, but has placed considerable pressure on its balance sheet position.

(7)    Flying activity has dramatically decreased and there have been ongoing stand downs of employees in 2021 due to the ongoing impacts of the pandemic. Given the reduced flying activity and extent of the stand downs, had Qantas not decided to outsource Ground Operations in November 2020, Qantas and QGS would have stood down large numbers of their ramp, baggage and fleet employees in 2021.

(8)    Since the outsourcing of Ground Operations was implemented, Qantas has not been required to make any capital expenditure in respect of GSE for the Qantas Airports business.

(9)    Qantas continues to face serious financial and operational difficulties as a result of the ongoing pandemic, and associated uncertainty about the level of future flying activity.

C.3    The Survey Evidence

29    The Union tendered what was described as a survey “Summary Report” prepared by Mr Shane Compton who is a Senior Research Director, Quantitative Consulting Team at the Social Research Centre. For reasons I will now explain, this evidence is problematical.

30    The solicitors for the Union, Maurice Blackburn, provided the Social Research Centre with a list of survey questions which were reviewed for the purposes of administering an online survey. Following some revisions, the survey was ultimately administered to what were identified as 1806 “in-scope workers”.

31    The evidence suggests that out of 1531 survey responses able to be used, a total of 77.7% of affected employees supposedly indicated that they wished to be reinstated to their former position if the Court was to make an order for reinstatement.

32    But this figure cannot be accepted uncritically for several reasons. The first is really a question simply going to weight and, in and of itself, is not of great consequence. For reasons explained below, the alternative of a compensation order in a particular amount or a formula by which it could be calculated, was not able to be presented to the survey recipients. This was a result of the forensic choice of the Union seeking a general reinstatement order and (understandably) pressing for a hearing on this primary relief not being deferred until compensation could be estimated accurately following the hearing of a number of “test” cases on compensation.

33    To understand the second reason to doubt the accuracy of the survey, it is necessary to revisit, in some detail, the circumstances in which the survey evidence was obtained, and the oral evidence of Mr Compton.

34    Shortly after the delivery of the principal judgment, on 18 August 2021, a case management hearing was conducted during which extensive submissions were made about the scope of a hearing to determine an appropriate remedy. During the course of that exchange (at T16.1–9), Mr Gibian SC, appearing on behalf of the Union, foreshadowed that the Union was proposing to conduct a survey in order to ascertain the proportion of employees who wished to take up reinstatement. I immediately responded that it was “fundamental” if a survey was to ask individuals to make an election between alternative remedies, that the employees understand clearly the nature of their rights and noted the difficulty of that being assessed “in a vacuum”, that is, in advance of an idea of what compensation would likely be awarded or how it would be calculated. I noted that an employee may agree that reinstatement is a good idea in the abstract, but it would be difficult for the employee to understand “the counterfactual”, that is, “if [the employee] was to obtain a compensatory remedy?”: T16.11–20. At that time, it was clear that the Union was seeking reinstatement as the primary remedy and was only seeking an order for compensation on behalf of the outsourced employees in the event that the reinstatement order was refused.

35    Following that case management hearing, I ordered that the Union file a “Points of Claim” document, accompanied by a document which, in the light of my comments, set out how the Union considered that any relief hearing should take place, including whether individual claims of persons alleged to have suffered loss should be determined at the same time as the global reinstatement order was sought.

36    Such a document was filed, and a global reinstatement order was pressed as the primary relief and the Union contended that such a hearing should take place as soon as practicable. The Union also foreshadowed that at such a hearing it would lead evidence in support of reinstatement, including a survey of the outsourced employees. At the case management hearing that occurred on 8 September 2021, I directed the attention of those acting for the Union to the Survey Evidence Practice Note (GPN-SURV) (Survey Practice Note), noting that it would be appropriate for any survey to be conducted by somebody who was independent of the parties to preserve the integrity of the survey process, and that any information and instructions given to the survey participants or any person who will administer the survey instrument, occurs as contemplated by [3.2] of the Survey Practice Note: see T27.11–21. I further noted that if the Union intended to seek to adduce survey evidence, it ought to proceed in the orthodox way, which would mean that it is more likely to be admissible and that “[there is] a reason why the [Survey Practice Note] has developed this procedure, to preserve the integrity of any survey evidence”: T27.28–29.

37    On 22 September 2021, a Survey Notice was served by Maurice Blackburn, attaching, as Annexure A, a copy of the proposed instrument. On 29 September 2021, Qantas provided a Responding Notice which noted asserted deficiencies in the principal survey question proposed, including that it was unanchored to any point in time and that:

… there is no meaningful context and information for [outsourced employees] to weigh up the value to them of participating in the Reinstatement Option as opposed to taking up the alternative remedy of compensation. As Qantas has stated on numerous previous occasions, at this early stage where there is no relevant information as to the amount of the Compensation Option ([outsourced employees] are more likely interested in the likely amount for compensation, rather than a theoretical (and lawyered) formula as to how that amount may be calculated), how can any [outsourced employee] express any preference which has any probative value?

38    In any event, what then appears to have happened is that the solicitors for the Union had a series of communications with Mr Compton, including as to the proposed content of the survey design. The involvement of the solicitors, in part, went beyond the role contemplated by the Survey Practice Note at [4.5]. It would have been better, of course, to provide the Survey Notice and the Responding Notice to an independent survey administrator and to allow him to design and administer the survey. This is not a case where there was ever any doubt as to what was the relevant question.

39    More specifically, when Mr Compton gave evidence, it became apparent that:

(1)    He considered his client was the solicitors for the Union, Maurice Blackburn, and the Court was “irrelevant” in “terms of the contract and in terms of who [he] needed to get approvals from for the final version of the questionnaire, the sign-off on various pieces [of work]” and the client who would be “signing off or approving” the conduct of his task: see T187.10–26.

(2)    He was given a draft survey instrument by the solicitors for the Union; it comprised a “Part A – Explanatory Memorandum” and a “Part B – Survey”. He did not look at Part A in detail (nor did he comment upon it or edit it) because he thought that this information related to legal matters that had been set by the Court. Part A was presented to him as information the survey recipients needed to understand to complete the survey: see T163.40–T166.5.

(3)    Part A went into the survey material in the same form as it was provided to him and he understood it was important that the survey recipients read it. But notwithstanding this, its importance, and the fact that the survey recipients were asked to read the explanatory material in Part A at the commencement of the survey process, no part of his brief was to either review or comment on that explanatory material, nor provide advice as to its density or as to its likely comprehension by the survey recipients. Indeed, to the extent he turned his mind to the material, he expressed the view that “it was long”: T200.16.

(4)    He also understood his task was for the survey recipients to express a preference or choice for them to be reinstated or be compensated; he did not understand that the option for reinstatement involved an “opt out” option. When he considered the survey questions he understood he was conducting a review “only about reinstatement” and that compensation was “not really an option for people at the time of the survey” and any compensation would only be known after the survey (which he then sought to make clear in the questions he settled): see T168.41–45; T169.15–18; T170.23–T171.5.

(5)    A version of the survey was sent to Mr Compton on 23 September 2021; a revised version was sent to Mr Compton by the solicitors on 15 October 2021; and on 20 October 2021, Mr Compton sent an email to the solicitors providing edits and comments and an alternative version of the principal question. The solicitors had provided a “yes” or “no” answer to one question concerning reinstatement but Mr Compton considered that this was “not balanced in the wording as it’s not giving equal weight/representation to the reinstatement option and the compensation option”. He also asked the solicitors whether “an ambivalent response is possible or permitted” and noted at this time that he was happy to discuss the comments he had made with the solicitors. This apparently occurred, and after a discussion with the solicitors, Mr Compton believed that as compensation was not an option available for the survey participants at the time of the survey, and hence he thought the question ultimately asked (rather than a question along the lines he had proposed) was preferable.

(6)    In short, the additional questions and the form of the critical question initially proposed by Mr Compton to achieve optimal balance and allow ambivalent responses were not adopted following close involvement by Mr Compton’s “client” in the survey design process.

40    Although I consider that the solicitors acting for the Union no doubt thought they were acting appropriately in relation to Mr Compton and in procuring the survey generally, the process adopted was not what I had in mind when I made plain that I would be best assisted by a survey, conducted by an independent person and in accordance with the Survey Practice Note. If the survey administrator had been instructed optimally, it would have been for the survey administrator to ensure that the survey, including the explanatory material, was comprehensible and it would have been his job to settle upon the most balanced survey possible, recognising that the possibility of compensation was on the table and that survey recipients were entitled to be ambivalent in their responses.

41    Thirdly, evidence was adduced of communications between the Union and its members during the survey period which may have had the potential to skew the results of the survey. Contemporaneously with the commencement of the conduct of the survey, the Union was communicating with its members, including as to the survey. In a document entitled “FAQ – Outsourcing Case Remedies” (FAQ Document), sent by text to its members, the Union represented, among other things, the following:

Remedy hearings and survey

With respect to General Protections claims, this will be the biggest remedy decision ever in Australia with 2000 employees involved. To help the Judge reach a decision on reinstatement, workers who were outsourced are being surveyed by the Social Research Centre, with the following options:

1.    reinstatement and compensation

2.    compensation only

(Emphasis added).

This survey is voluntary and anonymous. It will used as evidence in the Federal Court to indicate to the Judge how many people want to be reinstated to assist the Judge in deciding whether to make orders for reinstatement.

If you choose reinstatement on the survey and the Judge makes orders for reinstatement but you no longer want to be reinstated, you will not be forced to return to work. The court will then consider how much compensation you should be awarded.

The TWU is seeking four separate remedies for our members:

•    First, we are seeking reinstatement. Reinstatement is the primary remedy if you have been unlawfully terminated. For those members that want to be reinstated, we are also seeking compensation for loss of income up to their reinstatement.

•    Second, for members who do not want to be reinstated, we are seeking compensation for loss of income since termination and into the future.

•    Third, for all members (whether you choose reinstatement or not), we are seeking compensation for non-economic loss. If the decision by Qantas to terminate you has affected your mental health, we are asking that you are compensated for this.

•    Finally, we are seeking penalties against Qantas for the action it has taken against each of you.

Q&A

…

What does reinstatement look like? Who will my employer be? Will I still be covered by the same enterprise agreement? Will I be full time or part time?

If reinstatement orders are made and you want to be reinstated, you will be reinstated to the same position you were in immediately prior to your termination. This means you will be employed by either QAL or QGS (depending on who previously employed you), you will be covered by the same enterprise agreement that covered you during your employment and you will work the same hours you were contracted to work prior to your termination.

Reinstatement should look like you were never terminated.

What if I choose reinstatement in the survey and the court makes orders for reinstatement but I no longer want to be reinstated because my circumstances have changed?

If you choose reinstatement in the survey and the Court makes orders for reinstatement but your circumstances change or you change your mind after you complete the survey, you will not be forced to return to your old job and can instead opt for compensation only.

…

What if I choose reinstatement, the court grants me reinstatement and then Qantas make me redundant again?

Any decision by Qantas to make you redundant again shortly after or before your reinstatement will be a breach of the court’s orders.

Further, as you will be reinstated to the same position you were in prior to your termination (together with a recognition of the continuity of service), Qantas will likely have to (for example) reengage its managers and reinstate its previous operations as they were prior to your termination - in other words, reverse its decision. It would make little sense for Qantas to then make you redundant again once it has gone to this effort.

For avoidance of doubt, you would be entitled to a redundancy package based on your years of continuous service as a result of any unlikely decision by Qantas to make you redundant.

…

**If your question is not answered in this document please contact your delegate, or otherwise your TWU branch: www.twu.com.au/contact.**

42    Further, remote meetings using the Zoom technology were held between representatives of the Union and its members. This occurred on 3 September, 17 September and 1 October 2021 (the last of these meetings occurring after a case management hearing conducted on that day). The only evidence concerning what was said at those meetings was given by Mr McIntosh and I will return to it below, but it is fair to say by reason of the document that was sent to members (and the Zoom communications) that it must have been evident to the survey recipients who received those communications that the Union strongly favoured reinstatement and that there was apparently no binary choice between reinstatement or compensation, but rather, what was highlighted was a choice between “reinstatement and compensation” or “compensation only” (see the emphasis added in the extract of the FAQ Document above).

43    The FAQ Document is not literally inaccurate, although some aspects of it (including the unqualified assertion that any retrenchment shortly after reinstatement would necessarily be a breach of the Court’s orders) puts the matter too highly. All in all, however, it seems to me evident that anyone receiving communications during the course of the survey period, or who took up the express invitation to contact a Union delegate or a Union branch, would likely have received the message that reinstatement was the best option for a survey recipient and that reinstatement could be chosen, safe in the knowledge that a survey recipient would “not be forced to return to work”.

44    Fourthly, someone identifying themselves as “Desiree Sheets-Chavolla” posted the following comment on Facebook:

Hi All

This status is for anyone who was made redundant from Qantas Ground Operations this past year.

Today we had another win in Federal court [sic] with regards to reinstating our jobs that were illegally outsourced by Qantas.

The TWU has asked: if you know people involved in this case (who were made redundant) who haven’t received any comms from the TWU this week, please ask them to send their name, email, phone number and state to *** media@twu.com.au ***

The Courts are [sic] sending out a reinstatement survey and we NEED everyone to say they are interested in REINSTATEMENT regardless of if you are or not interested in going back to work for Qantas.

This is non-binding and after we win reinstated [sic] you can opt for compensation instead of going back.

We need this survey to reflect that 90% of the redundant work force didn’t want this and want their jobs back.

(Emphasis in original).

45    It appears that there were 78 “likes” and 39 “comments” to this social media post (Initial Post).

46    From the exchange of comments, the following excerpts are significant. In response to a query by someone identifying themselves as “Sophia Vellis” asking “Do you know when we are going to receive the survey? [smiley face emoji]”, “Desiree Sheets-Chavolla” commented:

Sophia Vellis please share with any and everyone you know that might need this information [prayer emoji]

47    To this comment, “Sophia Vellis” responded:

Already did [winking face emoji] all waiting for the email

48    Then followed an exchange between persons identifying themselves as “Nick Bashford”, “Catherine Rose”, “Desiree Sheets-Chavolla” and “Tom Hauseman” (underline representing who posted the comment or reply, and bold representing where a person was “tagged”):

Nick Bashford:

All I say is good luck Because [sic] who wants to pay there redundancy back. If things chance and qantas [sic] has already sold off their ground equipment to the other ground handlers.

Catherine Rose:

Nick they may not have to if they’re rewarded compensation and their jobs.

Nick Bashford:

Catherine Rose all the ground equipment has been sold off and most of the stud is broken own anyway. Me personally I just want compensation and that’s it and move on. Unfortunately the old days have long gone now.

Desiree Sheets-Chavolla:

Nick Bashford understandable but you could do your part to help out your fellow workmates who might want their job back. You can still opt for compensation only after the judges [sic] sees 90% want reinstatement. As for paying back the redundancy money some people would have been jobless and needed their redundancy payment to support themselves so that will be worked out during the compensation part of the court award. Right now the judge will make his ruling on reinstatement after the surveys. So please put your bitterness aside and help us who really want to continue our careers in aviation. Thank you [prayer emoji]

Nick Bashford:

Desiree Sheets-Chavolla sorry I will not be filling it out.

Tom Hauserman:

Nick Bashford . [sic] Mate you want compensation? That’s the whole point of the survey. You need to fill it out. Then you opt out not to take your job back and then claim compensation. There will be no paying back of packages!

49    Further on in the chain of comments “Pasquale Ardino” returns to this saying:

Make sure Twu [sic] has your details if you were made redundant. The goal is to push for reinstatement, even if you don’t want your job back. The [sic] have to tackle that first before seeking compo , [sic] So the judge can make his decision. Surveys will go out soon so stick together. Good onya [sic] Desiree Sheets-Chavolla [thumbs-up emoji]

50    “Catherine Rose” responded:

Pasquale couldn’t say it better, stick together and help your union win.

51    Further on, in reply to another “post” seeking to “clarify” the position with respect to reinstatement, a person identifying himself as “Tony Tsiamis” continues this discussion, responding to a comment of a person identifying himself as “Peter Inches”, questioning “What about if don’t [sic] want to go back to your job and moved on …”:

Peter Inches Put down you want to get reinstated then if the time comes you can say no to going back

52    Desiree Sheets-Chavolla then made another post on 29 October 2021 (which gained 22 “likes”), stating:

Hi Guys,

Please check your emails for the Qantas/QGS REINSTATEMENT court survey.

Also, check your junk mail.

If you have not received the Survey from SOCIAL RESEARCH CENTRE by November 4th please ring TWU on 02 8114-6500 or by email on TWU@TWU.com.au to update your contact details.

Also guys can I encourage everyone to prioritize the reinstatement and answer YES to the section about being reinstated to your QGS/QAL role.

This is a non binding survey.

Unanswered surveys will not be counted.

53    Shortly before the Reinstatement Hearing, Qantas and QGS identified that they were seeking the following factual findings about these Facebook posts:

Facebook post and comments – Findings of fact regarding purpose

1.    That on or about 1 October 2021 Ms Desiree Sheets-Chavolla made a post to the Facebook Group (i.e. Appendix 5) (the Post).

2.    By making the post, Ms Sheets-Chavolla encouraged Affected Employees to respond to what she knew was a Court-directed reinstatement survey to the effect that they want to be reinstated regardless of whether they were interested in returning to work for Qantas or QGS (as the case may be).

3.    In the week beginning 4 October 2021, Ms Sheets-Chavolla encouraged Ms Sofia Vellis to share the Post with other Affected Employees (see Appendix 6).

4.    In the week beginning 4 October 2021, Ms Sheets-Chavolla made various comments in relation to the Post to a similar effect to (2) above (see Appendix 6).

5.    Ms Sheets-Chavolla’s purpose in doing each of the things above was to artificially inflate the number of Affected Employees who responded to the survey in the affirmative.

6.    The [Union] encouraged, solicited or incited Ms Sheets-Chavolla to do each of these things with that purpose.

7.    In or before the week beginning 4 October 2021, Sofia Vellis shared the Post.

8.    In the week beginning 4 October 2021, Tom Hauserman made a comment in relation to the Post to a similar effect to (2) above (see Appendix 6).

9.    In the week beginning 4 October 2021, Pasquale Ardino made a comment in relation to the Post to a similar effect to (2) above (see Appendix 6).

10.    In the week beginning 4 October 2021, Catherine Rose made a comment in relation to the Post to a similar effect to (2) above (see Appendix 6).

11.    In or around the week beginning 18 October 2021, Tony Tsiamis made a comment to a similar effect to (2) above (see Appendix 8).

54    Given the seriousness of the findings sought by Qantas and QGS, on 8 October 2021, in order to provide procedural fairness to the six persons identified above alleged to have made Facebook posts or comments, I ordered that they had leave to: (1) appear on their own behalf or by a legal representative (if they wished to do so) at 10:15am on 15 December 2021 at the Reinstatement Hearing and (subject to any claims of privilege) to file, prior to 5pm on 14 December 2021, any affidavit evidence they wished to rely upon (if any) as to any involvement they had (if any), with the making of any of the Facebook posts; and (2) to make any application to vacate the order made in their absence. I also ordered that the Union provide verified discovery of any document directly relevant to the factual issue that it encouraged, solicited or incited Ms Sheets-Chavolla to inflate artificially the survey recipients who wished to opt for reinstatement.

55    The apparent makers of the Facebook posts obtained independent legal representation, and their solicitor informed the Court on the second day of the hearing that they did not intend to file any affidavit material nor appear at the time indicated in the orders, notwithstanding notification of the findings sought by Qantas and the leave being granted to them. Further, no documents were produced in answer to the order for discovery. In saying this, I should note that no documents were sought to be produced (for example, by way of texts or other messages) between identified officials of the Union and the apparent makers of the Facebook posts or between the apparent makers of the Facebook posts. The only evidence given relevant to the issue of the Union’s involvement was by Mr Nicholas McIntosh who, since August 2018, has been the Assistant National Secretary of the Union. He deposed that he was unaware of any relevant contact between the alleged makers of the Facebook posts and any Union official: see T90.1–T91.3.

56    In the absence of any evidence other than the Facebook posts themselves and the surrounding circumstances (and having regard to the seriousness of any finding as required by s 140(2) of the EA), the following findings should be made on the balance of probabilities as to the Facebook posts:

(1)    That a Union activist, Ms Desiree Sheets-Chavolla made the Initial Post to the relevant Facebook group, which likely involved a publication to a number of persons who were survey recipients and she did so on 1 October 2021, being the same day the evidence reveals she attended the “Zoom” meeting with representatives of the Union at which the survey was discussed.

(2)    By making the Initial Post, Ms Sheets-Chavolla encouraged some outsourced employees to respond to what she must have known was a Court-directed reinstatement survey to the effect that they want to be reinstated regardless of whether they were interested in returning to work for Qantas or QGS (as the case may be).

(3)    In the week beginning 4 October 2021: Ms Sheets-Chavolla encouraged Ms Sofia Vellis to share the Initial Post with other outsourced employees and made various additional comments to a similar effect; and Mr Tom Hauserman, Mr Pasquale Ardino, Ms Catherine Rose and Mr Tony Tsiamis made a comment to a similar effect.

(4)    In or before the week beginning 4 October 2021, Ms Sofia Vellis shared the Initial Post.

57    Additionally, evidence was adduced from a manager of Qantas, Mr Rodney Hollingworth establishing that the makers of each of the relevant posts were outsourced employees (although the position is not entirely clear in respect of Ms Rose).

58    This leaves for consideration the additional findings initially sought by Qantas and QGS that: (1) Ms Sheets-Chavolla’s purpose in doing each of the things above was to inflate artificially the number of outsourced employees who responded to the survey in the affirmative; and (2) the Union encouraged, solicited or incited Ms Sheets-Chavolla to do each of these things with that purpose.

59    As to (1), a finding as to the purpose of Ms Sheets-Chavolla is not determinative of any issue currently before me at the Reinstatement Hearing and given its nature, unless a finding was required, I do not propose to make it.

60    As to (2), whatever misgivings or suspicions arise because of: (a) Ms Sheets-Chavolla’s apparent previous interest in, and involvement with the proceeding, including speaking to the media; (b) her apparent desire to support the perceived interests of the Union; (c) her role as an activist within the Union; (d) her participation at the Zoom meeting held on 1 October 2021; (e) the fact that the survey was spoken about at the meeting on 1 October 2021; and (f) the wishes of the Union to promote reinstatement as a remedy, I have not reached a level of reasonable satisfaction that the Union encouraged, solicited or incited Ms Sheets-Chavolla to act in the way alleged. As it turned out, reflecting the reality of the evidence on this point, a finding in these terms was not ultimately pressed by Qantas and QGS in final address.

61    In any event, I do not consider I should reject the evidence of Mr McIntosh in this regard. Although I have some reservations about how I should accept at face value the completeness of Mr McIntosh’s evidence given his previous affidavits (a topic I will turn to below), on the evidence adduced, it is not established that the Union encouraged, solicited or incited Ms Sheets-Chavolla. I am somewhat comforted in reaching the conclusion that nothing untoward would have occurred at the Zoom meeting on 1 October 2021 because of the presence of the Union’s junior counsel at that meeting. Indeed, it seems to me it is inherently improbable a representation designed to skew the survey would have been made at a Zoom meeting without some comment being made by any responsible or competent counsel cautioning against such a foolhardy and injudicious course. As to any encouragement or incitement occurring at another time by the Union or its officials, the evidence is far too speculative to sustain a finding of such seriousness.

62    In the light of all this, what am I to do with the survey?

63    No objection was taken to the survey evidence that it was not relevant within the meaning of ss 55 and 56 of the EA on the ground that there was an insufficient basis to consider the results of the survey were sufficiently reliable and accurate in the light of the communications identified above made to survey recipients prior to, and during the course of, the survey. Nor, as surprising as it may be, was s 135 of the EA called in aid to seek the discretionary exclusion of the evidence in circumstances where there was apparently some departure from the requirements of the Survey Practice Note combined with the communications made by the Union and the wholly inappropriate Facebook posts.

64    The submission of Qantas and QGS was that the survey process (which had as its foundation in Mr Compton’s mind that “only one option was available”) miscarried. This submission should be accepted. Although the explanatory information a survey recipient would have seen was literally accurate, it was long (as Mr Compton accepted), and it was also dense. Mr Compton was not asked, nor did he advise, on its ability to be comprehended. What matters is that the survey design was arrived at through a process of deliberation over which the solicitors for the Union were heavily involved, the critical question in the survey lacked sufficient balance, and the survey is now clouded by the additional communications directed to at least some of the survey recipients which, quite plausibly, could have skewed the results. Because of the factors set out above, I am not satisfied that the survey, which became Exhibit B, has accurately captured a genuine choice between outsourced employees as to whether they prefer the possibility of reinstatement and the possibility of compensation.

65    Hence, I am not satisfied I can rely on the accuracy of the results of the survey.

C.4    Additional Findings

Outsourced Employees called by the Union

66    Mr Graeme Dowie, a member of the Union and a longstanding Qantas employee, gave unchallenged evidence as to his employment history, the impact of the pandemic upon him, his qualifications and employment expectations, and the deleterious effect of his retrenchment as a 56 year old man. Mr Dowie also gave evidence, which I accept, that he had pride in his work and that he wishes to be reinstated to his position at Qantas.

67    Mr Anthony Bates, a 61 year old Sydney family man with two dependent children, also gave evidence. He was another member of the Union and longstanding Qantas employee starting in 2001. He gave evidence he expected to see out his working days at Qantas. He was frustrated, angry and disappointed by the outsourcing. His job was important to his social interactions. He was offered a job swap but he did not want to perform any job with a “graveyard shift” (8pm to 6am). He received a payment upon redundancy which, including all his substantial statutory entitlements, was in the order of $100,000 to $120,000, and he is currently receiving approximately $1,500 per week in workers’ compensation payments. I accept that Mr Bates has been affected adversely in a significant way by his retrenchment and he wishes to be reinstated to his former position, which he enjoyed.

68    Mr Kim Mason, another Union member and a 44 year old former Qantas employee, gave similar evidence, which I accept, as to his intentions as to employment, his lack of formal qualifications, his devastation at the decision to outsource, the fact he was not offered any other permanent position within Qantas, his pride in his work and the impact of the outsourcing decision upon him. His last day was 16 March 2021. He was clearly upset while giving evidence and, unfortunately, is struggling in coping with his circumstances. He struck me as representative of the likely non-financial consequences of the outsourcing on many of the outsourced employees. Happily, he has now secured a job, but it is one which requires him to live remotely, some 250kms away from his family. It does not take much imagination or empathy to understand the strain that would put on a father separated from his family, and upon his family generally. He was offered a job swap or redeployment or retrenchment (although it appears he had somewhat limited information about the details of any job swap or redeployment). He chose retrenchment because he was concerned he would walk away with nothing, because of his then concerns about the future of the aviation industry. He strongly wishes to be reinstated.

69    All of this evidence was consistent with what one would have thought intuitively as being the human cost of the outsourcing decision and the impact of retrenchment on those that had laboured for Qantas and QGS, some for a very long period of time.

The Union Official called by the Union

70    Mr Nicholas McIntosh who, as noted above, is the Assistant National Secretary of the Union, relevantly gave evidence, which I generally accept, as to the following:

(1)    Qantas and QGS and the contractors were all put on notice of the relief that the Union was seeking in this proceeding before the implementation of the outsourcing decision and that this might affect their contractual arrangements with Qantas.

(2)    A consequence of the outsourcing decision on the membership of the Union has meant that in practical terms it has lost the ability to call upon the continuing work of experienced delegates who had been extensively trained (sometimes over some years) by the paid officials of the Union.

(3)    There is limited or reduced ability to bargain for enterprise agreements to replace the Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018 (QAL Agreement) and the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS Agreement) or to organise and take protected industrial action in support of any claims in bargaining.

(4)    Outsourced employees who have taken positions with the contractors are employed, in the opinion of Mr McIntosh, on inferior terms and conditions of employment to the terms and conditions of employment under the QAL Agreement and the QGS Agreement. In this regard, the Union has fewer members employed by the contractors than at Qantas and QGS and its density of members is lower. The Union has a difficult relationship with one of the contractors, Swissport, which, in the opinion of Mr McIntosh, has a workforce which is highly casual and has had a high turnover. This will mean that outsourced employees who remain in the industry will have less favourable terms and conditions of employment and will be in a weaker position to better their circumstances. Further, some employers in the ground handling industry, Swissport in particular, have what appears to be a hostile relationship with the Union.

(5)    If reinstatement orders were made, the Union would attempt to cooperate with Qantas in seeking to reinstate outsourced employees to their positions including discussing with Qantas efficiencies in the conduct of work as it has done in the past with both Qantas and other participants in the aviation industry.

71    An issue as to the credit of Mr McIntosh was raised at the Reinstatement Hearing. Mr McIntosh gave evidence on affidavit at the liability hearing as to the density of Union membership. But it is evident that the records of the Union as to membership have been held in such a way that there has been (at best) some very real confusion as to the percentage of affected employees who were members of the Union at the time the outsourcing decision was made (although the number of outsourced employees who are Union members as at 31 December 2020 is now, at the Reinstatement Hearing, an agreed fact). Important caveats on the accuracy of information previously given to the Court as to the number of affected employees who were Union members emerged during cross-examination at the Reinstatement Hearing. On 6 May 2021, submissions were filed with the Court asserting, in effect, that approximately 1,818 of a little less than 2,000 employees were Union employees as at 31 December 2020. This was a significant overstatement of the true position and this misrepresentation of the position should not have occurred.

72    It now appears that the affidavit evidence relied upon at the liability hearing as to Union membership was inaccurate, although there was no cross-examination on this topic at the liability hearing, and the percentage of affected employees who were Union members was not determinative of the result at that hearing (as it happened). It will be recalled that I was critical of the affidavit evidence filed by Qantas at the earlier hearing, and it now appears that a lack of proper attention to presenting a complete picture in the written evidence was not restricted to evidence adduced by one side of the case. Despite all this, and although it causes me a degree of disquiet, the evidence given by Mr McIntosh generally accorded with the inherent probabilities and my concerns about this issue have not caused me to disbelieve his evidence generally.

The Qantas Employees called by Qantas and QGS

73    Mr Colin Hughes gave evidence as to the redundancy process, a timeline as to creating a new ground operations business, and the perceived benefits of the outsourcing decisions as meeting the so-called “three imperatives” of Qantas as referred to in the principal judgment (at 302 [117]).

74    Mr Andrew David gave evidence including as to: (a) Qantas’s current activities; and (b) the steps necessary to re-establish a ground operations business and its perceived lack of commerciality.

75    The evidence given by these witnesses was generally consistent with the inherent probabilities, including the fact that Qantas would do all it could to minimise the costs of ground handling to the extent it could do so, and that all relevant decisions it would make would be informed by reducing the costs of ground handling. The oral evidence at this hearing did not suffer from the vice of artificiality or overzealous preparation apparent in so much of Qantas’ evidence at the liability hearing. Although there was close cross-examination on credit, particularly in relation to Mr Hughes, I do not consider that the cardinal aspects of the evidence of the witnesses was undermined in a substantial way, and from this evidence, it is appropriate to make the following findings:

(1)    The last six months have been one of the worst financial periods in the history of Qantas, which has caused the stand-down of 10,000 employees since August 2021. An extraordinary revenue loss of $20 billion has been incurred since the beginning of the pandemic. The focus of Qantas moving forward is seeking a return to normality when it can, and on reducing costs and preserving liquidity. It has committed to a three year recovery plan.

(2)    The perception of those responsible within Qantas is that the outsourcing has performed well in terms of savings and safety; indeed Qantas now estimates that by the end of the 2023 financial year it will secure savings of approximately $125 million per annum by reason of the outsourcing of its ground operations.

(3)    Apart from an estimate prepared by Mr Hughes of a timetable for implementing the reinstatement of outsourced employees (as reflected in Ex 1, p 200), which estimated a 28 week period from the end of the opt out period following a reinstatement order (reinstatement timetable), no detailed planning has been done to date for a reinstatement of outsourced employees because: (a) in the abstract, and without understanding the number and location of reinstated employees, it is impossible to understand the future shape and scale of the new ground handling operation that would be required; (b) it was considered commercially prudent not to raise the uncertainty at this time with the contractors, including any possibility for the need to purchase GSE (a somewhat curious notion given the contractors would not be ignorant of the risk reinstatement could be ordered); and (c) the attention of senior managers has been focussed on the exigencies of the continuing disruption caused by the pandemic.

(4)    Although the reinstatement timetable prepared (in consultation with industrial relations specialists and solicitors) might be thought to be one that in some respects is somewhat bureaucratic, and involves processes which one might intuitively or superficially have thought could be truncated, it is clear from his oral evidence that Mr Hughes had thought carefully about each component of the estimates relating to “Recruitment and Training” and “Asset Selection & Introduction” and had fastened upon his estimates conscientiously. It is safe to conclude it will be a lengthy and complicated exercise which depends, in part, on negotiation with, and the co-operation of, third parties, including a monopoly lessor and obtaining GSE from the contractors, and procurement of any required (and available) new GSE. Mr David’s admittedly broad-brush estimate based upon his general experience in the aviation industry was considerably longer, and gives no confidence the timeline identified by Mr Hughes could be truncated.

(5)    2,000 persons are needed to perform the necessary work and if, as seems certain, there would be insufficient reinstated employees to do the work, it is quite clear that instead of recruiting further employees as ground handlers, Qantas has decided it would be in its commercial interests to put in place a new labour model to implement new operational processes to support an integrated ground handling model (with employees of a contractor and reinstated employees). Such a new and largely untried model of dealing with ground handling might create some risk of complication, although this is far from certain.

(6)    Although it is impossible to be definitive as to timing and process of any retrenchments after any reinstatement, it is evident that Mr David is of a fixed cast of mind, communicated orally to Mr Hughes, that “he would not re-create the business and would continue to receive the ground handling services from the ground handling providers”, that is, contractors: see T335.28–T336.3. It is manifest that the subjective view of those with responsibility within Qantas is that the savings secured by outsourcing are highly significant, and that there is no prospect whatever of that subjective view changing in the foreseeable future. Indeed, the firm intention of Mr David, the man responsible for making the decision, is that any reinstated employees would be retrenched as soon as Qantas considered it could lawfully do so.

76    It is also convenient here to make a further finding as to the intentions of Qantas (which emerged during final address). Qantas and QGS had expressly agreed with the Union and admitted for the purposes of this proceeding that “in order for [Qantas and QGS] to comply with global reinstatement orders of the kind sought in [prayers] 1 to 5 of the [Union’s] Points of Claim dated 25 August 2021, Qantas would need to [re-create substantially] the Qantas Airports Ground Operations business”. One would have thought such a concession was as clear as a mountain stream. If an order was made of a certain character, then Qantas and QGS would, as a matter of fact, be required to do certain things. Qantas and QGS relied upon these certain things, that is, the re-creation of a ground operations business as constituting a powerful discretionary consideration as to why the reinstatement order ought not be made. In these circumstances, it was perplexing to be confronted by a submission made on behalf of Qantas and QGS that if a reinstatement order was made, Qantas and QGS “don’t accept at all” (at T440.25) that it would be necessary, in order to comply with that order, that Qantas and QGS would need to re-create substantially its Qantas Airports Ground Operations business.

77    After reflecting on this curious submission, I raised with senior counsel for Qantas and QGS what I was supposed to do with it. On one view it seemed to me that Qantas and QGS were saying that although they relied heavily upon the prejudice of being forced to re-create a ground operations business, the case in final submissions had transformed, and they were now saying that if an order for reinstatement was made, Qantas and QGS “don’t accept at all” that they were required to take the steps relied upon to make out that prejudice. This made, and still makes, no sense to me. It appears, however, that although there was an acceptance that if ordered to do so Qantas and QGS would need to re-create the Qantas Airports Ground Operations business, they did not want to admit that this would be the practical effect of a reinstatement order and would be a step necessary to take to comply with the order (even though, in terms, this is what they had already admitted as reflected in Exhibit A).

78    Although this submission stuck me, at best, as somewhat Gilbertian, what I do take away from it is that it presages the reality that Qantas and QGS will take advice as to the precise obligations arising under any reinstatement orders if made, and then do all it can (within what it is advised is the law) to maintain the perceived commercial benefits of outsourcing. The evidence could not have been clearer on this point.

79    I will return to the significance of these facts found below. But first I will turn to the legal principles to be applied in considering the relief sought.

D    THE APPLICABLE LAW

D.1    Reinstatement Generally

80    The power of the Court to make non-penal remedial orders arises under s 545(1) of the FWA, and both reinstatement and compensation are specifically referred to in s 545(2) as orders a Court may make. Section 545 appears, relevantly, as follows:

545    Orders that can be made by particular courts

Federal Court …

(1)    The Federal Court … may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2)    Without limiting subsection (1), orders the Federal Court … may make include the following:

(a)     an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person.

81    As can be seen from its terms and its statutory context, s 545 is a wide power allowing the Court to make any order that it considers appropriate if it is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Such a power to make any remedial order under s 545(1) involves, by the use of the word “may”, a discretion: see s 33(2A) of the Acts Interpretation Act 1901 (Cth).

82    Given the breadth of the power, it allows the Court to fashion a remedial response to the exigencies of any contravention or proposed contravention, taking into account relevant considerations informing the appropriate exercise of discretion in an individual case. Those relevant considerations are not expressly confined, and are best identified and considered by reference to the facts of each individual case in which relief is sought. But the statutory requirement that an order is “appropriate” highlights the necessity that any order is one the Court considers to be judicially appropriate, or just.

83    During the course of a case management hearing on 8 September 2021, senior counsel for the Union made the submission that the provisions of the FWA that Qantas has been found to have contravened have an important public policy purpose of protecting employees from adverse action as a consequence of the exercise, or to prevent the exercise, of industrial rights. It was further said that the principled approach by reference to the authorities is that “in a general sense at least, the proper vindication of that public interest ought [to] be satisfied by reinstatement orders being made”: T22.35–36. In response to my request that senior counsel identify the high water mark of those authorities, counsel referred to Bowling v General Motors Holdens Ltd (1980) 3 ALR 297 (JB Sweeney, Evatt and Northrop JJ) and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (Jessup J).

84    The submission foreshadowed by the Union was later developed in the following way.

85    The assessment of the scope, purpose and operation of the power conferred by s 545(1) to order the reinstatement of employees in circumstances where an employer has contravened s 340 of the FWA and the contravention has led to the dismissal of employees, requires ss 340 and 545(1) to be considered together in the light of the protective purpose of s 340(1)(b) and the context, including by reference to the settled historical understanding of the power to order reinstatement (where an employer has been found to have contravened the predecessor provisions to s 340 (or s 346) of the FWA).

86    A number of provisions of Part 3-1 of the FWA, including s 340(1)(b), create norms of conduct by rendering illicit conduct taken for a proscribed reason or with a proscribed motivation or intention and determining that breaches of those stipulated norms are “civil remedy provisions”. Part 3-1 does not itself contain the power to make remedial, corrective or penal orders in cases of breaches of civil remedy provisions. That is the subject of Part 4-1 of the FWA, in particular, s 545 and, in the case of penal orders, s 546.

87    The purpose of the norm found in this case to have been contravened, s 340(1)(b), is evident from its terms; namely, a person is prohibited from taking adverse action to prevent the exercise of a workplace right by another person. Section 340(1)(b) relevantly seeks to protect employees by prohibiting employers taking adverse action against employees for the purpose of preventing them exercising a workplace right. The protective nature of the provision is emphasised by s 336(1)(a), which details that one of the objects of Part 3-1 is to “protect workplace rights”. This object is directed, among other things, to s 340(1): cf Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; (2020) 282 FCR 1 (at 8 [13] per Allsop CJ, and at 20 [67] per Flick J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564 (at 587–588 [45]–[47] per Bromberg J).

88    The protective nature of s 340 is also explained in the Guide set out in s 334 which states that Part 3-1 provides “general workplace protections” and that Division 3 (in which s 340 is contained) “protects workplace rights, and the exercise of those rights” (see also s 6(2)(a) which describes Part 3-1 in similar terms). Also relevant for present purposes is s 336(1)(d), which identifies another object of Part 3-1 is to provide effective relief for persons who have been “adversely affected as a result of contraventions of this Part”.

89    The Union stresses that what is appropriate for the purposes of s 545(1) must be determined in the light of the purpose of the “civil remedy provision” contravened, including the subject matter, scope and purpose of the provision. It is also said that the non-exhaustive list of orders set out in s 545(2) are significant in pointing to the purpose of s 545, namely, to address or remedy the effects of a contravention of a civil remedy provision.

90    The Union submits that where an employer has taken adverse action contrary to the norm stipulated by s 340, the question of what order should be made should be framed in the context of the protection which the contravener has infringed. The relief granted should, so far as possible, be effective (consistently with the object set out in s 336(1)(d)) to ameliorate and remedy the adverse consequences flowing from the contravention of the particular statutory norm.

91    Hence, the Union submits that, where employees have been terminated for the purpose of preventing them from exercising workplace rights under s 340(1)(b), effective relief to deal with and ameliorate such a contravention and vindicate the protective purpose of s 340(1)(b) will (subject to the employee being willing and able to be re-employed) be to order reinstatement. In this sense, it is contended that the statutory context demonstrates that reinstatement is the primary and presumptive remedy for contraventions of Part 3-1 which lead to dismissal of employees.

92    The Union drew from the decision of the Full Court in Bowling (which considered ss 5(1) and (5) of the Conciliation and Arbitration Act 1904 (Cth) (CA Act)) the following five so-called “points of principle”:

(1)    Reinstatement would ordinarily be ordered where an employee is dismissed contrary to s 5(1) of the CA Act, being the forerunner to s 346 of the FWA and, ultimately, s 340 of the FWA. Hence the presumptive or prima facie position was that reinstatement should be ordered.

(2)    Although the power to order reinstatement was discretionary, it was a power that fell to be exercised to vindicate the protective purpose of the prohibition against adverse action being taken in contravention of the norm of conduct mandated by s 5(1) of the CA Act.

(3)    Unless an order for reinstatement were made, the protective purpose of s 5(1) of the CA Act would not be vindicated and the employer would benefit from its contravention by ridding itself of an employee or employees for one or other prohibited reasons.

(4)    Consistently with the presumptive or prima facie position, reinstatement should be ordered absent “good reasons” (such as the employee not desiring to be reinstated).

(5)    An employer should not be able to benefit or profit from its breach of the statutorily prescribed norm.

93    Consistently with this, the Union pointed to Kerrin v Leighton Contractors Pty Ltd (1986) 16 IR 40, where Keely J observed (at 45–46) that counsel for the employer “accepted”:

… that the proper principles to be applied were those set out by the Full Court in Bowling’s case (1980) 50 FLR 79; 33 ALR 297 and accordingly that, upon the conviction of the employer, prima facie the court should direct the reinstatement of the employee. However, he submitted that that prima facie position changed “once evidence is led or argument is advanced as to why the prima facie position ought not apply.” He said that the court should have regard to the reasons for judgment of Wilson J (with whose reasons Mason and Deane JJ agreed) in Slonim v Fellows (1984) 154 CLR 505. That case dealt with the question whether a Conciliation and Arbitration Board had jurisdiction under the Industrial Relations Act 1979 (Vic) (before its amendment in 1983) to determine a claim for reinstatement. Referring to the general powers of the Board under s 34(1) of that Act, Wilson J said (at 515):

“First, a clear distinction should be drawn between employment of a person and reinstatement of a recently dismissed employee. As the court rightly observed, the power to direct that A employ B is a very drastic one. It is not lightly to be inferred in the absence of compelling language.”

[Counsel for the employer] expressly refrained from submitting that Slonim v Fellows “in any way cuts down the full authority of Bowling’s case” (ie the Full Court judgment in (1980) 50 FLR 79; 33 ALR 297) and said that the decisions in the two cases are not inconsistent. Later in his address Mr Kaufman said “it may be that to some extent Slonim v Fellows does in a practical sense cut across Bowling’s case”. In my opinion the dictum of Wilson J in Slonim v Fellows, read in its context and in the light of the issues in that case, is not an authority requiring a single judge of this court to refuse to follow the principles expressed by the Full Court in Bowling’s case.

In support of his submissions as to the question of reinstatement, Mr Kaufman cited a number of decisions by State Courts and Tribunals, including G J Coles & Co Ltd v Pietruszka (1983) 4 IR 329. In my opinion those decisions do not support the defendant’s submissions in this case. In addition they must be read in the light of the fact that they were given under different legislation. In so far as they contain any statement which is inconsistent with the judgment of the Full Court in Bowling’s case, the latter is an authority binding upon me.

94    Whether the principle identified by the Union that, upon a relevant contravention, a prima facie or presumptive entitlement to reinstatement exists puts the position accurately, is open to at least some question. The Full Court in Bowling was dealing with a different provision (ss 5(1) and (5) of CA Act), which only provided for a partial compensation remedy (wages lost to the date of the order) and the power to order reinstatement arose upon conviction of an offence (and hence was a penal provision).

95    There is certainly the view, expressed by a number of judges of the Court, that the true position is the somewhat more refined notion that reinstatement “in the ordinary case” is an appropriate order where employment has been terminated for a prohibited reason: see Independent Education Union v Geelong Grammar School [2000] FCA 557 (at [34] per Finkelstein J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bluestar Pacific Pty Limited [2009] FCA 726 (at [50] per Greenwood J); Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (at [186] and [190] per Katzmann J); Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088; (2015) 253 IR 391 (at 480 [470] per Murphy J); Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2015) 327 ALR 460 (at 521 [313] per Mortimer J); Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 2) [2020] FCA 1215 (at [8] per O’Callaghan J). An example of this can be seen in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218; (2012) 228 IR 195, where Jessup J noted (at 237 [125]), in the context of a claim under s 346 of the FWA, that a reinstatement order “would usually be the normal consequence of a successful claim under s 346, in the absence of some particular reason being shown why such an order should not be made”.

96    In addition to these cases, it is worth mentioning two others. The first is Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716, where Tracey J observed (at [75]–[76]):

In Slonim v Fellows (1984) 154 CLR 505 at 515 Wilson J (with whom Mason and Deane JJ agreed) said that:

“ … the power to direct that A employ B is a very drastic one … it will always be a power to be exercised with caution having regard to the circumstances of the case. There will be many cases where the working relationship of employer and employee is so close that to impose such a relationship by an award would be quite destructive of industrial harmony.”

Notwithstanding these cautionary admonitions, there have been decisions in this Court which are supportive of the proposition that reinstatement is appropriate “in the ordinary case” in which an applicant’s employment has been terminated for a proscribed reason: see Independent Education Union v Geelong Grammar School [2000] FCA 557 at [34]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 at 237. The position remains, however, that the discretion, vested in the Court by s 545, falls to be exercised in the peculiar circumstances of each case.

97    The second is the decision of Bromberg J in Quinn v Overland [2010] FCA 799; (2010) 199 IR 40 (at 59–58 [97]–[98]), where his Honour made reference to the historical reluctance to allow the equity of specific performance to run in relation to the performance of employment contracts, but cautioned that this hesitancy needs to be understood by reference to its rationale, and that such a reluctance was based on two considerations:

… the need for mutual confidence and the perceived need to avoid constant supervision by a court. Courts have increasingly realised that those considerations are no longer as applicable to modern day employment relations as historically was the case: Turner v Australasian Coal and Shale Employees’ Federation (1984) 6 FCR 177 at 192-193; 9 IR 87 at 97-98 per Northrop, Keely and Gray JJ and Gregory v Philip Morris Ltd (1988) 24 IR 397 at 424-425 per Wilcox and Ryan JJ.

Of particular significance to the continuing relevance of the original rationale, is that throughout the length and breadth of Australia, Parliaments have enacted unfair dismissal regimes which provide for the reinstatement of a dismissed employee as an available remedy. These regimes have now been in place for over a generation. Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by a reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential: Downe at [462].

98    Where does this survey of the cases leave us?

99    What is clear is that once the Court is satisfied that the power is engaged, the Court’s task is to determine what order or orders it considers to be appropriate. The consideration of what remedy is appropriate involves a broad discretion. Although in many cases where an employee is unlawfully dismissed, the manifestly appropriate remedial response is reinstatement, uninstructed by authority, I would be attracted to the proposition that this does not create any type of prima facie entitlement, and there is no principled basis to divine some form of entitlement unless and until it is displaced. To elevate the identification of what was an appropriate remedial response in some cases to being points of principle of universal application in cases of a particular genus might be thought to place a gloss on the statutory words. It also may risk decontextualising cases where reinstatement has been ordered.

100    Further, two aspects of the statutory context might be thought to tell against the suggestion there is a prima facie rule in a particular type of case. First, s 545 applies without adaptation or modification to a wide range of civil penalty provisions including: contravening a national minimum wage order (s 293), contravening a bargaining order (s 233), or intentionally hindering or obstructing a permit holder’s entry to an employer’s premises (s 502). This might be thought to exhibit some tension with the existence of a presumptive form of remedy for one type of contravening conduct and not others (absent a specific indication in the text).

101    Secondly, the power with which we are concerned can be contrasted with the remedial power where an employee has been dismissed unfairly contrary to Part 3-2 of the FWA. Where a dismissal is unfair, s 390(1) grants a power to order reinstatement or compensation, but s 390(3) precludes the order of compensation unless there is satisfaction that reinstatement is “inappropriate” and s 392(1) provides that compensation may only be ordered “in lieu of reinstatement”. This difference in approach reflects the differences in statutory objects between Parts 3-1 (“to provide effective relief”: see s 336(1)(d)) and 3-2 of the FWA (“to provide remedies … with an emphasis on reinstatement”: see s 381(1)(c)).

102    But there is some force in the Union’s submissions that the authorities identified above tend to suggest some support for a presumptive or ordinary “principle”, at least in “the ordinary case” (whatever that elusive description is supposed to mean), in favour of reinstatement. In Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18, Jessup J (at 99 [281]–[283], with whom Rangiah J agreed at 137 [463] and White J agreed at 158 [571]) explained that the Court’s power to make an order for the reinstatement of an employee, pursuant to s 545, is not limited to the making of an order for reinstatement to the position from which the employee in question was dismissed. In doing so, his Honour explained the history of an express power to reinstate from 1947 onwards and noted that s 545 is not narrower than its antecedents. His Honour also stated that the fact s 545 of the FWA applies in contexts which are not limited to contraventions of the victimisation/freedom of association provisions of the legislation, does not affect the approach to its construction.

103    In my view, in every case the question can be stated simply: what is the appropriate remedial order or orders in the peculiar circumstances of the case having regard to relevant matters and discarding the irrelevant ones? The decisions relied upon by the Union which are supportive of the proposition that reinstatement is appropriate in the “ordinary case” in which an applicant’s employment has been terminated for a proscribed reason (or that there is some sort of prima facie position to be displaced) might be better seen simply as a reflection of the fact that in “ordinary cases” where an employee is dismissed unlawfully, it might be thought it would be likely appropriate to order reinstatement, rather than suggesting this amounts to some sort of principle to be applied in all cases of this type. In any event, as I will explain, it really does not matter in the present case, as the end result is the same, irrespective as to whether it can be said that there is some sort of prima facie position which is required to be displaced by the contravener resisting reinstatement.

D.2    Delay and Discretionary Relief

104    The final legal issue I wish to address is how to approach the issue of any delay and, more specifically, the relevance of the Union declining to apply to enjoin the implementation of the outsourcing decision (or seeking an early final hearing) such as to result in the decision being implemented (with the consequence that steps were taken by Qantas to put in place the new arrangements for baggage handling at the relevant ports and third party interests were enlivened).

105    Analogies are not perfect and can only go so far, but they can provide at least some guidance in determining whether an order for reinstatement (which, to a limited extent, has some similarity to a statutory order for specific performance) should be made.

106    It is both distracting and inapt to go into detail as to how equity deals with issues of delay when an order for specific performance is sought. Speaking very generally, the mere fact of delay is not fatal to relief unless it rises to a level such as to amount to laches. The real focus is on whether, having regard to any delay, it is, in the all the circumstances, fair and just to order specific performance. This involves consideration as to whether an element of injustice is present that would not have been present had the relief been sought without any operative delay: see Carter v Hyde (1923) 33 CLR 115 (at 127 per Isaacs J); Websdale v S & J D Investments Pty Ltd (1991) 24 NSWLR 573 (at 581–582 per Clarke JA, with whom Samuels JA generally agreed at 574 and Priestley JA agreed at 575).

107    The same approach seems to me to provide a useful guide as to how one weighs any delay in considering whether an order for reinstatement under s 545 of the FWA is “appropriate”. Hence, it seems to me to be a relevant consideration to ask whether there is an element of injustice occasioned to either a party or third parties that would not have been present had the relief been sought without any proven relevant delay?

E    THE PROCEDURAL HISTORY

108    As long ago as 25 August 2020, Qantas made a public announcement about a proposal to outsource work. An in-house bid process then occurred which the Union considered was being conducted unsatisfactorily. On 30 November 2020, the outsourcing decision was announced.

109    Despite the urgency and the not unlikely prospect that the outsourcing decision would be made, the proceeding was not commenced until 9 December 2020. I arranged for it to have an early return date because, upon reviewing the originating application, relief was sought (prayer 2) in the following terms:

2.     Orders in the nature of an injunction pursuant to s 545(2)(a) preventing Qantas:

2.1    terminating the employment of the Qantas Employees on the basis that their jobs are to be outsourced;

2.2    terminating its contract or contracts with QGS, ceasing to engage QGS or otherwise make use of the services of QGS in relation to the provision of ground handling services.

110    Further, it was evident from the statement of claim, that the implementation of the decision of Qantas to outsource its ground handling operations to third parties was not then yet in place. Hence, I assumed, the relief enjoining Qantas would be moved upon or, at least, an early final hearing would be sought by the Union prior to the implementation of the outsourcing decision. It seemed to me that this was obviously an urgent matter, likely affecting the lives of thousands of third parties.

111    The evidence discloses that after listing the matter, but before the first return of the application, there were communications between the parties.

112    On 10 December 2020, Qantas and QGS respectively launched a preference process through an electronic form giving the affected employees the opportunity to express their interest in either: redundancy with an exit date in January, February or March 2021; or job swap or redeployment opportunities. The next day, the solicitors for the Union wrote to the solicitors for Qantas, seeking that Qantas provide an undertaking that Qantas would not terminate the employment of the affected employees employed by Qantas or terminate its operations with QGS.

113    Three days later, Qantas by its solicitors, advised that no decision consequent on the 30 November 2020 announcement of the outsourcing decision had been made and that no undertaking would be provided (noting no undertaking as to damages had been offered).

114    On the morning of the day before the first case management hearing (FCMH) on 22 December 2020, I had my Associate send a memorandum to the parties noting, among other things, that: (a) at the FCMH, consideration would be given to the steps truly required to be taken and the setting of dates for mediation and hearing as early as reasonably possible; (b) prior to 5pm, the parties were free to provide to chambers copies of any agreed or competing proposed orders and that if a contested interlocutory order was sought, sufficient notice ought be provided to the other party and either party could file a short submission in relation to the issue prior to the FCMH (and that my practice was to attempt to resolve all interlocutory issues within the context of the case management hearing and, if reasons were sought, they would likely be provided ex tempore); and (c) the matter could be listed before me at short notice at any time.

115    Against this background, my Associate received the following communication later that day, but after hours, from the Union’s solicitors:

We refer to the above proceeding, which is listed for a case management conference before his Honour Justice Lee tomorrow at noon.

The parties have conferred regarding the orders for the proceeding but have not reached an agreed position. The applicant’s proposed orders are attached (the tracked changes are made to orders proposed by the respondent). Given his Honour’s practice of not formally reserving liberty to apply, we do not seek order 13. Our counsel will provide an explanation of the orders at tomorrow’s case management conference.

116    Those orders, as proposed by the Union, suggested a separate liability hearing, allowed a further month for Qantas to file its defence (that is, not only abridging the time required by the FCR, but in fact extending time), and proposed category-based discovery; however, they did not require Qantas to file its evidence until early March 2021 and suggested a liability hearing “not before” mid-April 2021.

117    When the matter came before me the next day, I indicated that although pleaded in a complicated manner, if the case was simplified, it seemed a “relatively straightforward case”: FCMH, T3.32. The following exchange then occurred with senior counsel for the Union (at FCMH, T3.38–T4.39:

HIS HONOUR: Now, while we’re dealing with relief, in respect of prayer 2, orders in the nature of an injunction, what is the state of play concerning the termination of employment of the Qantas employees, as defined?

MR GIBIAN: As I understand it, it has been communicated that it’s intended to occur at times between January and March of 2021. I understand there was - - -

HIS HONOUR: Well, if it’s going to occur between January and March 2021 there’s not much point granting an injunction, is there, in circumstances where you’re proposing a timetable which takes us up to past April?

MR GIBIAN: As I understand it, that is the current time frame that is proposed by Qantas. We have communicated to Qantas a request that they not proceed further with the matter pending the - - -

HIS HONOUR: And what have they said?

MR GIBIAN: I think – as I understand it, their response is that they were still continuing to consult regarding the outsourcing decision and further decisions have not been made in respect of timing but there was no need for an undertaking in that circumstance.

HIS HONOUR: Well - - -

MR GIBIAN: That was what was communicated on 15 December.

HIS HONOUR: You’re not moving for any interlocutory relief.

MR GIBIAN: No, your Honour.

HIS HONOUR: So isn’t it the case then that the final relief is likely to be otiose unless we get this matter on – at least prayer 2 will be rendered otiose unless you get this matter on quickly.

MR GIBIAN: Yes, your Honour. There may need to be – if those actions are taken then there may need to be refinement of an alternative relief sought, which could be in the form of reinstatement or compensation as alternatives.

HIS HONOUR: So you don’t press for a hearing in January?

MR GIBIAN: We don’t think that that is likely to be practically – complete the proceedings.

HIS HONOUR: Why not?

MR GIBIAN: We think it is a case in which there has to be the production of documents and sufficient time for the process that has been undertaken by Qantas to be subject of examination upon the production of those documents.

118    Later, in the course of submissions with senior counsel for Qantas, there was some discussion as to the scope and timing of discovery and the following exchange occurred (FCMH, T15.44–T16.19):

HIS HONOUR: ... My original concern was the relief [that was] sought of an injunctive nature, but that doesn’t seem to be being pressed. And whether I had to really quite expedite this

MR DALTON: Yes, so - - -

…

HIS HONOUR: … it struck me as a bit odd that you would seek final relief in accordance with prayer two of the originating application, an injunction preventing termination of the employment when the case isn’t going to get on until after their employment is terminated. So, that was the reason for my asking Mr Gibian if he wanted a hearing date in January - - -

MR DALTON: Yes, I heard that.

HIS HONOUR: - - - because that was the final relief.

MR DALTON: I heard that explained, your Honour.

119    By the end of the FCMH, it became apparent the Union had been refused an undertaking but determined it would not seek an interlocutory injunction. Given the price that would have been sought upon the granting of such relief (an undertaking as to damages), this was perhaps understandable. But I went on to note that the Court would do all it could to facilitate an early final hearing on liability, including by sitting in the long vacation. However, the Union was content to persist in an overly complicated case (part of it was only abandoned when I entreated the Union to do so) and on a timetable which did not provide for an expedited hearing. Although discovery was critical, the reasonable searches required by FCR 20.14 would have been informed by the relevant matter of the discovery process needing to be completed quickly: see FCR 20.14(3)(e). The important and critical documents were hardly obscure (as might reasonably have been expected) and I had little doubt at the time that an expedited discovery process could have resulted in the production of the key documents (notwithstanding Qantas’ submissions as to how long it would all take). As it happens, the discovery that was given, and the revelation of the close involvement of the solicitors since at least May 2020, fortifies the view I then held.

120    Mr Gibian SC for the Union explained with some force in final submissions that it was a responsible course not to take an early final hearing. There is some merit in his contention that, given the then asymmetry of information as to what happened within Qantas, it was a responsible course on the facts then known to the Union and those that advised them to pursue a later hearing. It also appears that the law is somewhat unsettled as to the approach that should be taken in order to establish a serious question to be tried seeking interim relief: see Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340 (at 361–362 [69] Ryan J); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 (at [48]–[53] per Snaden J).

121    Moreover, in the principal judgment (at 332 [314]) I observed that this complex matter as to liability was resolved only eight months to the day from the making of the impugned decision and that this occurred because of the skill and the co-operation of the practitioners involved for both parties, for which the Court indicated its gratitude. Notwithstanding that the hearing and determination occurred relatively quickly, I am satisfied that with a sense of urgency the case on liability could have been held earlier and that, when it did run, it was still more complicated than it had to be, including involving expert evidence of marginal (at best) utility and a vast bundle of documents (out of which, only a fraction went into evidence). This resulted in the need to produce a judgment dealing with a range of issues and with evidence that, in the end, were not relevant to the determinative issue between the parties.

122    I will return below to how this procedural history assumes significance in the exercise of discretion.

F    THE UNION’S CONTENTIONS

123    With some degree of overlap and simplification attendant upon summary, the Union’s submissions as to why reinstatement is the “only appropriate remedy that will address and remedy” the effects of the contravention of s 340(1)(b) of the FWA can be placed into a number of broad contentions.

124    First, reinstatement is the only remedy that will “vindicate the important public and remedial purpose” of the provision contravened given the purpose of s 340(1)(b), which is, relevantly, to protect employees from their employer taking adverse action against them to prevent them from exercising a workplace right. It is said that the only way to address and remedy that contravention is to place outsourced employees back in a position where they are able to exercise those rights. That can only be achieved by an order for reinstatement. Additionally, the consequence of the redundancies of the outsourced employees has been that any practical ability for enterprise bargaining for replacement agreements to the QAL Agreement and QGS Agreement has disappeared; the Union’s membership base in Qantas’ business has now also disappeared, as too has its capacity to advocate for and represent the industrial interests of members in Qantas’ business and this has the obvious potential to reduce the collective strength of the Union and the interests of its members more generally. A related point was developed (and if I may say so, powerfully) in closing submissions, to the effect that there would be a reduction in the “collective strength” of the Union if the Court did not recognise a prima facie entitlement to reinstatement and make such an order in the circumstances of this case. In this respect, senior counsel for the Union, stated (at T407.32–41):

The significance of [the reduction of the collective strength of the Union] is that the rights that are sought to be protected by the provisions which have been contravened are not purely individual – are not individual rights; they are collective rights. That is, your Honour found that action was taken to prevent the exercise of workplace rights, being to participate and to engage in protective industrial action and enterprise bargaining. Those processes are, by definition, collective industrial processes that … are undertaken by industrial organisations that organise their members to participate in those processes in order to obtain industrial outcomes in terms of improved wages and terms of conditions employment for a group of members and for a class of employees, not just for individual members employed at a particular point in time, but for the class of industrial membership that the union has.

Those are the rights that are sought to be protected by the [FWA] and by these provisions. If all that happens out of preventing those collective processes happening is that current individual employees receive an amount by way of compensation with respect to the loss of their employment, those collective industrial rights have not been protected.

(Emphasis added).

125    Indeed, it is said, contrary to the submission of Qantas, that while the FWA does serve to protect individual industrial rights, it does so through the preservation of collective industrial rights.

126    Secondly, it is contended that the evidence adduced by Qantas and QGS, taken as a whole, is incapable of discharging the burden to displace “the prima facie position” that “reinstatement should be ordered where an employer has been found to have contravened one of the protective provisions of Part 3-1 of the [FWA]” and that contravention has led to the dismissal of employees.

127    Thirdly, it is said that refusing reinstatement relief would be incongruent with authority, in particular, the principles expounded in Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 81 ALR 213 (at 219 per Gray J) to the effect that a contravening employer cannot be heard to complain that reinstatement would involve reorganisation of its operations, expense or inconvenience to it. Gray J’s observation in Sunland Enterprises is submitted to be germane to the present case: if an employer could resist an order reinstating employees because of expense or inconvenience to it, very few reinstatement orders would be made and employers would be incentivised to arrange their affairs to avoid reinstatement. That is, however, precisely the contention said to be advanced by Qantas and QGS in opposition to reinstatement. Indeed, the Union contends that Qantas, in effect, seeks to rely on “the sheer scale of its own unlawful conduct to defeat reinstatement” and that the “scale of Qantas’ contravention makes it more, not less, urgent that appropriate remedies be ordered by the Court”. Hence, it is submitted that to accept Qantas’ argument would be:

… to accept the proposition that contravening the important protections under Part 3-1 of the [FWA] and incurring the costs of a Court hearing and then paying whatever penalties and compensation may be ordered are but the cost of achieving an unlawful end.

128    Fourthly, the suggestion in the evidence that Qantas will not take steps absent compulsion to re-create the infrastructure and conditions necessary for outsourced employees to be reinstated is contended to be contrary to the principles explained Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 (at 544–545 [14] per McHugh J, at 549 [33] per Kirby J, and at 564–565 [75] per Callinan and Heydon JJ). It is said the evidence that Qantas will not take requisite steps to put back in place reinstated outsourced employees “is remarkable and indicative of an intention to not comply with an order for reinstatement” and “cannot be relevant to whether a reinstatement order should be made”. The Union goes so far as to characterise this as an “impermissible threat”; that is, Qantas’ evidence that, in the absence of a specific order requiring it to re-create its ground handling business, it will not do so and that outsourced employees will forthwith be made redundant amounts to a flagrant “determination to circumvent” any order for a global reinstatement.

129    Fifthly, it is submitted that none of the established “good reasons” taken from the cases as to why reinstatement should not be ordered exist in the present case and in this regard:

(1)    there is and can be no assertion that there has been a breakdown of trust and confidence as between Qantas and QGS and their former employees, given that the outsourced employees were terminated by reason of redundancy rather than as a result of any misconduct or any reason peculiar to them;

(2)    the vast majority of outsourced employees wish to be reinstated (although in oral submissions this was refined to being the desire of a substantial number of outsourced employees);

(3)    notwithstanding that there will be some practical inconvenience and cost involved this “does not function to displace the prima facie position that reinstatement should be ordered”; and

(4)    none of the outsourced employees were offered their jobs back (and although consistent with Qantas and QGS’ consultation obligations under applicable enterprise agreements, they have been able to apply for other jobs in Qantas’ business) and “only a rejection of an offer of their previous jobs back would displace the prima facie position”. Indeed, it is said that Qantas did not “lead any evidence as to which employees were offered alternate jobs in its business, what the terms and conditions attaching to those jobs were and how they compared to the conditions previously enjoyed by the [outsourced] employees”.

130    Sixthly, it is said that the assertion that outsourced employees would have been made redundant in any event as there were other non-prohibited commercial reasons for the outsourcing is irrelevant (see Sutherland v Hills Industries Ltd (unreported, Keely J, 22 September 1982) and it is contrary to principle for an employer to contend that reinstatement should not be ordered on the basis that without the proscribed reason, dismissal would (or could) lawfully have happened in any event: Bowling (at 304–305 per JB Sweeney, Evatt and Northrop JJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662; (2005) 147 IR 35 (at 327 [70] and 328 [73]–[75] per Marshall J).

131    Seventhly, the notion that the outsourced employees may have been terminated “at some future point after their actual terminations is, again, not something that displaces the prima facie position” and the “counterfactual” hypothetical evidence led by Qantas is irrelevant. Whether Qantas hypothetically may have moved to outsource the affected employees in early or mid-2021, it is submitted, says nothing about whether it is appropriate to reinstate them in December 2021, “as it assumes that Qantas would have proceeded with outsourcing in 2021 after the ‘window of opportunity’ presented in 2020 with the QAL Agreement not being open would have vanished by the end of that year”: see PJ at [201], [274] and [277].

132    Eighthly, even accepting the premise that reinstated employees could be lawfully terminated subsequent to reinstatement, the possibility of almost immediate dismissal would not operate to render an order for reinstatement futile.

133    Ninthly, the Union relied upon the principle reflected in the maxim nullus commodum capere potest de injura sua propria, that is, no person should be allowed to take advantage of their own wrong. Further, the Union contended in reply that it was relevant to the question of remedy that Qantas and QGS have demonstrated “a thorough absence of remorse or reflection” in relation to the contravening conduct and that the Court “would not accept an unrepentant and recalcitrant respondent employer” seeking to establish that “reinstatement is inappropriate by vowing to take the same adverse action against the same employees as soon as reinstatement is ordered or at some point in the future”.

134    Tenthly, Qantas cannot be heard to complain about inconvenience or economic difficulties consequent upon reinstatement, because this proceeding was instituted well before employees were dismissed and before contracts were entered into in late January 2021 and, therefore, it was on notice that the lawfulness of it conduct was contested and that an order for reinstatement, if outsourcing proceeded, was sought.

135    Eleventhly, although this point received little attention during the course of the hearing, a suggestion was faintly made in writing that contrary to the bleak picture painted by the evidence adduced by Qantas as to the current state of its finances, this is not the picture Qantas is presenting to the public. Mr Joyce has talked about such things as: the “growing momentum around our recovery”; the fact that “there is a lot of pent-up demand that we’re ready to capitalise on, with some strong signs already”; and that although COVID had “a devastating impact on the aviation industry” and that Qantas has its “own repair work to do”, Qantas knows “travel demand will rebound quickly and right now we’re in a strong position to secure the best possible deal at very good prices” (for a fleet renewal programme).

136    Twelfthly, the evidence amply demonstrates that the contravening conduct has had a “significant and adverse effect … on blue-collar workers” including many of whom who had worked for Qantas for a number of years and planned to work for Qantas until their retirement. Further, many enjoyed and took great pride in their work; have experienced serious economic and social dislocation as a result of their dismissals; have been adversely affected psychologically and have suffered symptoms of depression and anxiety; and have found it difficult, due to their skill sets, educational situation and age, to find equivalent work.

G    CONSIDERATION

137    It is well to commence with what in my mind are the two most significant points made by the Union (see [124] and [136] above).

138    The non-pecuniary prejudice suffered by workers being unlawfully terminated cannot be gainsaid and ought not to be minimised.

139    Work is more than a way to make a living; it is a form of continuing participation in society. The rights of workers, like all other rights, are based on the nature of the human person and on their transcendent dignity. Justice Bromberg, with respect, put it well in Quinn v Overland (at 60 [101]), when his Honour observed:

There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non-pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled.

140    I suspect this is the reason why it seems to me likely that a significant (but unascertained) number of the outsourced employees would wish to obtain reinstatement. A number of the outsourced employees, especially those towards the end of their working life, have been deprived (initially, at least, by an unlawful action) of the opportunity of seeing out their productive working life with the matchless blessing of a worthwhile job. In this way, by the contravening conduct, they have been prevented from performing valuable labour and enjoying the satisfaction and self-respect that such labour often brings. This is a factor that tends to point strongly towards reinstatement for such persons being an appropriate remedy.

141    A further factor supporting reinstatement is that to decline reinstatement might be thought to give insufficient weight to the important remedial purpose of placing outsourced employees back in a position where they are able to exercise the rights the subject of the contravening conduct. Relatedly, it would be giving insufficient weight to the impact on the ability of the Union to advocate for, and represent, the industrial interests of its members in Qantas’ business and this has the obvious potential to reduce the collective strength of the Union and the interests of its members contrary to the statutory purpose of the FWA. Although one needs to recognise that only 39% of the outsourced employees are members of the Union, all employees’ interests are potentially furthered by the exercise of collective industrial rights. Again there is real substance to this submission, and I can understand why, if the only remedy is compensation and pecuniary penalties, collective industrial rights will not be protected in the same way as a reinstatement order. But these considerations must be balanced with all relevant factors. Although clearly a relevant factor favouring the making of a reinstatement order, there is a prospect that focussing too closely on placing the outsourced employees back in a position where they are able to exercise particular rights and the vindication of those collective rights protected by the FWA (which for obvious reasons is a matter of especial interest to the Union), could distract from my task of determining the appropriate remedy in all the circumstances of the case.

142    I will deal below with all the other contentions of the Union, but it is convenient to now turn to the compelling reasons to refuse the global reinstalment relief sought.

143    First, in assessing whether a remedial order is “appropriate”, it goes without saying that the Court should not make an order that would be futile, or incapable of performance. But the question of whether an order is “appropriate” is not answered by simply asserting it is capable of being implemented. The fastening upon an appropriate remedial response can involve a comparison with differing remedial responses that may be available depending upon the facts of the case. If two quite different responses are capable of being implemented, but one ranks far higher in an assessment of what is appropriate (including displacing what might be perceived to be a presumptive remedy in an “ordinary case”), then it stands to reason that the less appropriate response ought to be discarded. Put another way, the discretion involved in making a remedial order in an appropriate case is necessarily informed not only by the policy imperatives to further the object of the statute and the other factors identified above, but also by the comparative cost and delay associated with differing responses. They each may have different pros and cons, and these pros and cons must (or at least should) be considered in assessing appropriateness of the proposed remedy sought. In making this point I recognise that unlike at an earlier stage of the debate as to relief, the Union does not now advance global reinstatement and compensation as pure alternatives; the point I am making involves a comparison between a global reinstatement order (together with some future limited individual compensation order that might be available subject to any repayment of benefits obtained by reason of retrenchment) and an order for compensation for the outsourced employees in the absence of reinstatement (and absent any repayment of sums already paid).

144    There will be examples where the difficulties in reinstatement, although not properly described as incapable of performance, would not be “appropriate”. A good example is provided by Gray J’s decision in Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661; (2004) 142 FCR 296, where a security guard was dismissed but the respondent had subsequently ceased to carry on its security business. Asked to consider whether the guard should be reinstated, his Honour observed (at 306–307 [35]):

… It is not impossible for a company, still in existence, to carry out the order of the Commission. For it to do so, however, the respondent would be required to embark upon the conduct of a business which it does not conduct presently. It would have to enter into a contract or contracts with a person or persons unknown to provide the services of one or more security guards. It would then be required to administer those contracts, and to do all that is necessary to continue to operate such a business, if it were to respect the right of Mr Chelvarajah to continue in employment, once he was appointed. It would be required to do these things to avoid being found to be in contempt of court and being punished by a fine or by sequestration of its assets. Such a burden is too great to impose.