FEDERAL COURT OF AUSTRALIA

Transport Workers’ Union of Australia v Qantas Airways Limited (Penalty) [2025] FCA 971

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), the first respondent, Qantas Airways Limited, pay a pecuniary penalty in the amount of $90,000,000 (Penalty).

2.    Pursuant to s 546(3) of the Fair Work Act 2009 (Cth), part of the Penalty, being the sum of $50,000,000, be paid by Qantas Airways Limited to the applicant, the Transport Workers’ Union of Australia.

3.    The proceeding be adjourned part-heard to a date to be fixed for the making of a further order or orders pursuant to s 546(3) of the Fair Work Act 2009 (Cth) in relation to part of the Penalty (being the $40,000,000 balance of the Penalty).

4.    The proceeding be listed for a case management hearing on a date to be fixed.

5.    Liberty to apply to the applicant, in default of payment pursuant to order 2.

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

REASONS FOR JUDGMENT

LEE J:

A INTRODUCTION

1 These reasons explain the imposition of a pecuniary penalty on Qantas Airways Limited (Qantas) for what the applicant, the Transport Workers’ Union of Australia (Union), describes as the largest and most significant contravention of the general protections provisions of Pt 3–1 of the Fair Work Act 2009 (Cth) (FWA) (and, for that matter, any of the predecessor provisions to Pt 3–1, which have been a feature of Australian industrial law for over 120 years).

2 The Union submits the Court should order Qantas to pay the agreed maximum penalty in the sum of $121,212,000 or close to it (and that the whole, or a substantial portion, of this penalty should be paid to the Union). Qantas now accepts a “substantial” penalty should be imposed but says the case “has already been a wakeup call for corporate Australia – on what the law is; on how the issues in such cases should be considered in advance, and how litigation should be prepared for and run” and that to inflict the maximum penalty or close to it would be oppressive as it would not give adequate weight to various factors which place Qantas’ overall conduct in a proper light and would lack any reasonable relation to the statutory maximum.

3 The background and circumstances that gave rise to the contravening conduct were set out comprehensively in Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 (LJ) and Transport Workers’ Union of Australia v Qantas Airways Ltd [2024] FCA 1216; (2024) 334 IR 187 (CJ).

4 It is unnecessary to set out this detail again except as canvassed below. In short, and by way of introduction, I found that in November 2020, the Chief Executive Officer (CEO) of Qantas Domestic and International, Mr Andrew David, decided, during the COVID-19 pandemic, to “outsource” Qantas’ ground handling operations work at ten Australian airports to several third-party ground handling companies (outsourcing decision). Before the outsourcing decision, the ground handling operations had been undertaken by employees of Qantas and its subsidiary Qantas Ground Services Pty Ltd (QGS), many of whom were members of the Union. It was common ground that for the purposes of the imposition of penalty, nothing turns on any distinction between Qantas and QGS.

5 The implementation of the outsourcing decision meant that the vast majority of the Qantas-employed ground handlers were sacked. The Union challenged the outsourcing decision and in July 2021, I delivered the LJ, determining that the outsourcing decision was “adverse action” against Qantas employees in contravention of the FWA, which (pursuant to s 340) provides that a person must not take adverse action against another person to prevent the exercise of a workplace right by the other person. Here, the relevant “workplace right” (as that term is defined under s 341 of the FWA) was the ability for the employees to organise and engage in protected industrial action and participate in bargaining in 2021 (prohibited reason).

6 Declaratory relief was granted in August 2021 in Transport Workers’ Union of Australia v Qantas Airways Ltd (No 2) [2021] FCA 1012; (2021) 308 IR 333 (DJ). The Union then sought general reinstatement under s 545 of the FWA and, in October 2021, I ordered that the general reinstatement claim be determined separately. Just before Christmas 2021, at the conclusion of argument, I dismissed the Union’s claim seeking this relief: Transport Workers’ Union of Australia v Qantas Airways Ltd (No 4) [2021] FCA 1602; (2021) 398 ALR 124 (RJ). The declaration and orders reflecting my findings in relation to liability, and the dismissal of the reinstatement application were appealed to the Full Court, but the appeal and cross-appeal were dismissed: Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; (2022) 292 FCR 34.

7 After the proceeding had returned to deal with remaining questions, it was adjourned, pending the determination of a High Court appeal. This appeal was also dismissed: Qantas Airways Ltd v Transport Workers’ Union of Australia [2023] HCA 27; (2023) 278 CLR 571.

8 The Union had sought orders under ss 545(1) and 525(2)(b) of the FWA by way of compensation for economic and non-economic loss of the 1,820 affected workers (affected workers). The claims for compensation made in the proceeding were referred to mediation in September 2023.

9 This mediation failed and the Court was then called upon to determine what, if any, loss suffered by each of three so-called “test case” individuals had been established and whether orders providing for statutory compensation for the test case individuals ought to be made.  This involved consideration of what would have occurred in the event the contravening conduct had not happened. I found on the evidence before me at that hearing, that the most likely counterfactual, was that absent the contravening conduct, Qantas would have made an outsourcing decision in late 2021. It followed that it was appropriate in the cases before the Court to calculate compensation on the basis that the outsourcing would have occurred twelve months after each of the test case individuals ceased employment and hence the employees lost an opportunity of retaining their employment for that period.

10 In the CJ (at 192–3 [14]–[15]) I lamented that the remaining parts of the dispute had not been advanced as a Pt IVA (of the Federal Court of Australia Act 1976 (Cth) (FCA Act)) proceeding bringing with it the procedural benefits embedded in the modern class action regime. It was said at the penalty hearing that this created a difficulty because the cause of action “had merged in the judgment” (T79.46); but this was not really a difficulty. With leave, there would have been no issue with the Union pursuing the compensation in another proceeding and discontinuing the compensatory claims in this proceeding. After the dismissal of the High Court appeal, and prior to the compensation hearing, there would have been no fetter on a representative proceeding being commenced with the Union as the representative applicant. If commenced to secure the benefits of the class action procedure, a duplicative proceeding would not constitute an abuse of process and all parties, most relevantly Qantas, would have been bound by the factual and legal findings I made in the LJ and the RJ. It appears that drawn by currents not visible to the eyes of many plaintiff lawyers, those acting for industrial organisations seem unenthusiastic about embracing the manifold benefits of Pt IVA.

11 As it happened, I noted the Union relied on there being an “outbreak of cooperation between the parties” in extrapolating my findings in the CJ to the broader cohort: CJ (at 193 [16]). Hoping that a settlement might avoid these legal difficulties, in November 2024, and following the delivery of the CJ, I ordered (among other things) that: (a) any outstanding issues concerning the amount of statutory compensation payable to each of the test case individuals; (b) the appropriate mechanism for, and the making of orders to facilitate, the determination of statutory compensation payable to the remaining affected workers; and (c) the fixing of a date for, and any interlocutory orders regarding, the hearing of any claim for statutory compensation payable to the Union, be referred to a second mediation.

12 The evidence at this hearing establishes that on 17 December 2024, the parties entered “an agreement in principle for the settlement of the [Union]’s claim against Qantas seeking compensation” and that pursuant to the agreement, Qantas is to pay $120 million into a so-called “Settlement Distribution Fund” to be managed by the Union’s solicitors in its capacity as administrator of that fund: see Ex A (at 4). The moneys in the fund are to be paid out to: (a) affected workers based on what is said to be “a fair and reasonable assessment of the economic and non-economic loss” suffered by the affected workers as a result of the outsourcing decision (other than the “test case individuals”, whose claims for compensation in the total amount of $394,740.25 were resolved by orders of the Court); and (b) the Union, in the amount of $165,000, as compensation for the Union’s loss of membership fees. Legal costs associated with the administration of the fund will be deducted from interest accrued on the fund.

13 Unlike in a class action, the Court has no transparency concerning, nor control over, the quantum of the legal and administration costs. The Court could not explore the possibility of administering and distributing the funds by an alternative method which, depending upon the circumstances, could conceivably increase the amount available to be distributed to the affected workers. This goes against the grain of recent developments in closely controlling the legal and administration costs incurred on behalf of represented persons in the analogous context of class actions. As I said in Gill v Ethicon Sàrl (No 10) [2023] FCA 228 (at [10]–[11]) “the assumption that solicitors for applicants in proceedings … should become scheme administrators by default is a notion which needs to be exploded: Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw- Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 (at [52]–[54])”. Indeed, these concerns were picked up in Recommendation 9 of the Australian Law Reform Commission’s (ALRC) report Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders (Report 134, December 2018) (at [5.35]–[5.39]) where the ALRC recommended that Pt 15 of the Class Actions Practice Note (GPN-CA) include a clause that the Court may tender settlement administration, and include processes that the Court may adopt when tendering settlement administration.

14 Perhaps unsurprisingly given the history and nature of this proceeding, there is no evidence the Union sought competitive tenders to minimise the costs of administration – and it was suggested at the current hearing I should be satisfied, albeit in the absence of any detailed evidence, that the amount of the fund set aside was sufficient to provide “as full a compensation as the law would allow” (T45.27–28) for all the affected workers.

15 My present uncertainty as to the final amount to be distributed and how it is to be calculated, brings into focus a broader point. Given that the Union has proceeded to “settle” the claims of non-parties without the protections afforded by Pt IVA, the Court was unable to undertake and discharge what has been described as the onerous duty to determine whether the settlement was fair, reasonable and in the interests of those represented. This duty in protecting the rights of represented persons is so important that it has been described as a role akin to that of a guardian, not unlike the role a court assumes when approving infant compromises: P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029 (at [23] per Finkelstein J); Tasfast Air Freight Pty Ltd v Mobil Oil Australia Ltd [2002] VSC 457 (at [4] per Bongiorno J); Carnie v Esanda Finance Corporation Ltd [1995] HCA 9; (1995) 182 CLR 398 (at 408 per Brennan J); Australian Securities and Investments Commission v Richards [2013] FCAFC 89 (at [8] per Jacobson, Middleton and Gordon JJ).

16 No Court approved notices have been sent to those affected. I have no idea as to what they have been told about their rights. I have no evidence as to how “representative” or statistically meaningful the test cases were, or whether affected workers may disagree with the extrapolation of any findings I made in the CJ to their personal circumstances (bearing in mind that those findings are not, as a matter of statute, binding upon the balance of the affected workers leaving aside any, at present, unarticulated argument: (a) based upon equitable principles; (b) notions of abuse of process; or (c) as to how the settlement would impact upon the proper exercise of the discretion to order any compensation sought by an affected worker who wished to obtain additional amounts over and above any sum distributed pursuant to the settlement agreement).

17 Further, leaving aside any individual issues, no analysis was provided to me at this hearing as to how the total settlement sum was calculated.

18 It would be naïve to assume there is something akin to an efficient market in the settlement of litigation. What I do know is that the Union has, by this case, advanced the interests of the affected workers with skill and diligence, and I am also aware the amount ultimately paid by Qantas was satisfactory to the Union.

19 I will proceed on the basis that Qantas has done all asked of it. Qantas could hardly be expected to do more when belatedly compensating workers (and I will determine penalty on that basis), but whether the compensation is, in truth, “full compensation”, remains opaque to me on the evidence adduced by the Union at this hearing. Calculating non-economic loss on some sort of “global” basis raises considerable complications, which, in the context of class action settlements, requires the judge considering a s 33V application to assess detailed evidence (often including statistical opinion evidence) and complex legal analyses in opinions provided to the Court by counsel.

20 By contrast, the only material I have goes to: (a) the bare mechanics; (b) the fact that highly experienced senior counsel is involved in the process; and (c) that Qantas expects the amounts set aside to be enough and anticipates that the balance of an undistributed sum will revert to them.

21 I have no reason to doubt the desire of those acting for the Union to achieve the optimum recovery they perceived as achievable by way of a paction with Qantas; and the amount of compensation appears an objectively large sum. But a large sum is to be expected.

22 On the material I have, it seems the only witness called in the case, Ms Catherine Walsh, Qantas’ “Chief People Officer”, was right not to be definitive as to the sufficiency of the settlement. She circumspectly remarked that “the compensation that has been agreed goes some way to deal with” the affected workers being “properly remediated” (T41.45–46).

B THE APPLICABLE LAW

23 There is no real dispute as to the applicable provisions and principles.

24 The Court has the power to order the payment of the pecuniary penalty in respect of the contravention of s 340(1)(b) of the FWA. Section 546(1) of the FWA relevantly provides:

Pecuniary penalty orders

(1)    The Federal Court … may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

…

25 A “civil remedy provision” is a provision referred to in column 1 of an item in the table in s 539(2) of the FWA and includes the presently relevant statutory norm being s 340(1): see s 539(1) of the FWA and item 11 of the table. The FWA does not set out the factors that the Court is to consider when making an order under s 546(1); the only requirement in the FWA is that the Court considers the pecuniary penalty “appropriate”.

26 The principled approach to determining an appropriate civil penalty was explained by the plurality in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450. Those principles are well settled, and I summarised them in Australian Securities and Investments Commission v GetSwift Limited (Penalty Hearing) [2023] FCA 100; (2023) 167 ACSR 178 (at 187 [37]–[48]) as follows:

First, subject to the statutory scheme in question, the primary (if not sole) purpose of a civil penalty is the promotion of the public interest in compliance with the provisions of the Act in question by the deterrence of further contraventions of that Act: ABCC v Pattinson (at 431 [9] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). Importantly for the purposes of this case, retribution, denunciation and rehabilitation have no part to play: ABCC v Pattinson (at 433 [16]).

Secondly, the power to order a person to pay a pecuniary penalty … is a discretionary one, which must be exercised judicially, congruently with the aims and purposes of the Act: ABCC v Pattinson (at 437 [40]).

Thirdly, the process of fixing the quantum of a penalty is one of “instinctive synthesis”: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 (at 37–38 [44] per Jagot, Yates and Bromwich JJ). The Court is not unanchored, however, as there must be some reasonable relationship between the theoretical maximum and the final penalty imposed: ABCC v Pattinson (at 440 [53], citing ACCC v Reckitt Benckiser at 63 [156]). The following factors have emerged as possible relevant considerations, but not a “rigid catalogue” (Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (at 580 [91] per Buchanan J); ABCC v Pattinson (at 433 [18])), and were summarised by French J in Trade Practices Commission v CSR Limited (1991) ATPR 41-076 (at 52,152–53) as follows:

(1)    The nature and extent of the contravening conduct.

(2)    The amount of loss or damage caused.

(3)    The circumstances in which the conduct took place.

(4)    The size of the contravening company.

(5)    The degree of power it has, as evidenced by its market share and ease of entry into the market.

(6)    The deliberateness of the contraventions and the period over which it extended.

(7)     Whether the contravention arose out of the conduct of senior management or at a lower level.

(8)     Whether the company has a corporate culture conducive to compliance with the [Act in question], as evidenced by educational program[me]s or other corrective measures in response to an acknowledged contravention.

(9)    Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the [Act in question] in relation to the contravention.

I pause here to note that the need to avoid adopting a checklist approach has been brought into even sharper focus following ABCC v Pattinson. The overriding need to focus on what is necessary for specific and general deterrence is the key, and the above matters are important insofar as they inform the remedial response necessary to secure the objects of deterrence.

Fourthly, the Court must arrive at a figure with a view to ensuring that the penalty is not such as to be regarded as “an acceptable cost of doing business”: ABCC v Pattinson (at 433 [17]); Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 (at 659 [66] per French CJ, Crennan, Bell and Keane JJ), citing Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 (at 265 [63] per Keane CJ, Finn and Gilmour JJ). Persons engaged in trade and commerce must be deterred from the “cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention”: Singtel Optus v ACCC (at 265 [63]).

Fifthly, careful attention to the maximum penalty may be required because, balanced with all other relevant factors, it provides a yardstick: Australian Competition and Consumer Commission v Samsung Electronics Australia Pty Ltd [2022] FCA 875 (at [43] per Murphy J) citing ABCC v Pattinson (at 440 [52]–[54]).

Sixthly, it has been said that even if a company is in liquidation, it may still be appropriate to order that it pay penalties as a measure of the Court’s disapproval of the contraventions, and the seriousness of the contraventions: Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 (at [26] per Bromwich J). But following ABCC v Pattinson (at 431 [9]), it is important to note that the justification of any such order is not because of retribution but because a penalty in such circumstances can further the aim of general deterrence.

Seventhly, three principles commonly utilised in criminal sentencing also inform the Court’s arrival at a penalty figure: ABCC v Pattinson (at 438–439 [44]–[45]).

The first is the so-called “course of conduct” or “one transaction” principle. In Australian Securities and Investments Commission v Westpac [2019] FCA 2147 (at [264]), Wigney J explained that “where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality”. Put another way, where conduct engaged in by an offender may technically comprise a number of separate offences, if that conduct can fairly be characterised as a single act or course of conduct, the sentences imposed should be attuned to reflect that fact and avoid double punishment: Australian Competition and Consumer Commission v Yazaki [2018] FCAFC 73; (2018) 262 FCR 243 (at 294–295 [227]–[229] per Allsop CJ, Middleton and Robertson JJ); ASIC v Westpac (at [264] per Wigney J).

The second is the “totality” principle, which requires the Court to look at the entirety of the offending and determine the most appropriate sentence for all the offences taken together: ASIC v Westpac (at [269] per Wigney J); Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd [2019] FCA 786; (2019) 370 ALR 637 (at 691 [240]–[241] per Perram J).

Thirdly and finally, parity and equal justice are relevant factors in determining the appropriate penalty: Australian Securities and Investments Commission v Macdonald (No 12) [2009] NSWSC 714; (2009) 259 ALR 116 (at 173 [319]–[322] per Gzell J); Australian Securities and Investments Commission v Flugge (No 2) [2017] VSC 117; (2017) 342 ALR 478 (at 491 [69]–[72] per Robson J). Ultimately, however, each case turns on its facts, so a review of penalties imposed in past cases is of limited utility.

I hasten to add, as emphasised by the plurality in ABCC v Pattinson (at 432 [14]), that there are, of course, limits to the “transplantation” of principles governing criminal sentencing to civil penalty regimes. Again, the focus must be on the promotion of the public interest in compliance with the relevant statutory norms by specific and general deterrence. The only “proportionality” which falls for consideration is the need to strike a “reasonable balance between deterrence and oppressive severity”: ABCC v Pattinson (at 437–438 [41]).

27 The only thing necessary to add is that there is a danger in approaching individual “French factors”, such as the nature and extent of the contravening conduct, the amount of loss or the deliberateness of the contraventions, by reference to reasoning drawn from the criminal law. This reasoning is well-illustrated by a decision of the Full Court (Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2022) 282 FCR 580), which approached the fixing of a penalty on the basis of what was proportionate and just in all the circumstances, and hence “appropriate” as required by s 546(1), having regard to the role of the maximum penalty provided for in s 546(2), while giving primacy to the objective of deterrence. However, following the rejection of this approach by the High Court on appeal, the principle of proportionality, and the role of the maximum penalty, both drawn from the criminal law, no longer play the role they played in relation to the imposition of civil penalties. Some pre-Pattinson cases, which used (or seemed to use) the “French factors” as a form of checklist to assess objective seriousness to ascertain, among other things, the need for retribution or denunciation, need now to be approached with great caution.

28 At bottom, the Court’s task under s 546 is fixing the penalty it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the FWA. A penalty will be “oppressively severe” and thus “disproportionate” if it is greater than necessary to achieve the object of deterrence: Pattinson (at 467–468 [40]–[41], 476 [71] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

29 Given the circumstances of this case, consistently with the general principles explained above, it is worth pausing to highlight three points stressed by Qantas, which I will bear in mind in assessing penalty.

30 First, it is open to the Court to consider whether the contravening conduct occurred in extenuating circumstances; the existence of such circumstances can warrant a conclusion that a more moderate penalty would be appropriate: see Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231; (2000) 101 IR 143 (at 174 [126] per Madgwick J) (affirmed on appeal in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349; (2001) 112 FCR 232).

31 Secondly, as to the demonstration of contrition or remorse, this is not a factor that aggravates penalty, but as the plurality explained in Pattinson (at 470 [47]), where genuine remorse for the contravention is expressed, it might be appropriate to impose a moderate penalty because no more would be necessary to “incentivise the contravenors to remain mindful of their remorse”. Thawley J, with respect, explained this concept well in Commissioner of Taxation v Bogiatto (No 2) [2021] FCA 98 (at [79]) where his Honour observed:

I accept that the lack of remorse or contrition demonstrated by the respondents, assessed in light of the respondents’ conduct as a whole, is relevant in that it suggests a higher penalty is warranted for the penalty to achieve the object of specific deterrence. This conclusion could equally be expressed by observing that there was no remorse demonstrated which might have operated to suggest that a lower penalty would have the desired deterrent effect. I do not consider that the lack of remorse is an “aggravating circumstance” in the sense that penalties should be increased simply because remorse has not been expressed.

32 Thirdly, the fact a party such as Qantas has defended a proceeding or pursued an appeal should not affect the amount of the penalty. To the extent such matters are relevant, they may weigh against a contravenor’s reliance on co-operation to reduce the penalty, but they should not result in it being increased: see Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 (at 285 [166] per Whitlam, Sackville and Gyles JJ); Australian Competition and Consumer Commission v Delta (No 2) [2024] FCA 580 (at [82] per Bromwich J).

C RELEVANT CONSIDERATIONS IN THE EXERCISE OF DISCRETION

33 To ensure, to the extent possible, there was some precision in identifying common ground and points of difference between the parties as to what matters the Court ought to consider in determining any penalty and making related orders, I ordered the provision of a document identifying the considerations the parties contended were relevant.

34 That ultimately proved a useful exercise, and it is worth reproducing the document provided to the Court in full:

Relevant considerations in making a pecuniary penalty order in NSD 1309/2020

A. Requirements of deterrence

1.    [Qantas] contends that the total pecuniary penalty should achieve (but not exceed) the requirements of general deterrence and specific deterrence of contraventions of a like kind. The [Union] contends that the object or purpose of the penalising exercise is the determination of a total penalty that will achieve general and specific deterrence, rather than a relevant consideration.

B. Number of contraventions and maximum penalty

2.    The number of contraventions of s 340(1)(b) of the [FWA] committed by [Qantas], being 1,820 (reflecting adverse action taken against [the affected workers].

3.    The maximum penalty available to be imposed on Qantas, being 300 penalty units at $222 per penalty unit per contravention, which totals $121,212,000.

4.    Whether and the extent to which the contraventions arose out of a single act (being the Outsourcing Decision) making the course of conduct and totality principles available as analytical tools for determining an appropriate penalty to achieve deterrence.

C. Nature and circumstances of the contravening conduct

5.    The purpose of the norm of conduct in s 340(1)(b) of the [FWA] and the objects of Part 3-1 of the [FWA] insofar as they are relevant to s 340(1)(b) of [FWA].

6.    The nature and importance of the workplace rights the subject of the contravening conduct (being to organise and engage in protected industrial action or a protected action ballot for the purpose of advancing claims in relation to a proposed enterprise agreement, and to participate in enterprise bargaining under the [FWA]).

7.    The public interest in ensuring compliance with the [FWA] and s 340(1)(b).

8.    The extent to which members of senior management of Qantas were involved in the contravening conduct.

9.    Whether the contravening conduct was planned and calculated (Qantas contends this consideration forms part of the consideration identified in paragraph 11 below).

10.    The nature and extent of the participation of internal and external lawyers and industrial relations advisors in the contravening conduct (Qantas contends that the nature of the legal and industrial advice received by Qantas in relation to the Outsourcing Decision forms part of the consideration identified in paragraph 11 below, insofar as it shows that Qantas proceeded to make the Outsourcing Decision believing (incorrectly) that it was lawful).

11.    The circumstances in which contravening conduct took place, including whether the contravening conduct can be characterised as deliberate, reckless, careless or inadvertent.

12.    The impact and consequences of the contravening conduct on: (a) the affected [workers], and (b) the [Union] (which Qantas accepts but contends are limited to the period before November 2021).

13.    The nature and extent of the: (a) financial benefits to Qantas as a result of the contravening conduct; (b) future financial benefits anticipated by Qantas as a result of the contravening conduct (as to sub-paragraphs (a) and (b), Qantas contends that the future financial benefits anticipated by Qantas at the time the Outsourcing Decision was made are relevant, but that any actual or anticipated financial benefits beyond November 2021 are not relevant); and (c) benefit to Qantas in preventing affected [workers] from exercising the workplace rights that motivated the adverse action (it is not clear to Qantas what the [Union] means by this consideration and so it does not accept this as relevant).

D. Circumstances and character of the contravenor

14.    Qantas’ circumstances, including: (a) its status as Australia’s largest domestic and international airline; (b) its size and resources; (c) its financial position; (d) its presence in a broader corporate structure, being the Qantas Group and the size, resources and financial position of that group; and (e) the number of employees employed by Qantas as well as its subsidiaries.

15.    The extent to which Qantas: (a) has shown contrition for the contravening conduct; (b) has taken corrective action; (c) has co-operated with the TWU in prosecuting the contravening conduct; (d) has co-operated with the TWU in the establishment of a settlement fund for [affected workers] and payment of compensation to the TWU (which the TWU contends is not relevant); and (e) has, or had at the time of the contravening conduct, a corporate culture conducive to compliance with the [FWA] (as to sub-paragraph (e), Qantas contends that its relevance is in the response to the contravention, not at the time of the contravention).

16.    Past contraventions by Qantas and QGS of industrial and regulatory laws (Qantas contends that only past contraventions of norms of industrial behaviour of a like character to s 340(1)(b) of the [FWA] are relevant).

E. Other considerations

17.    The adverse publicity Qantas has received as to the unlawfulness of the conduct (which the [Union] contends is not relevant).

18.    The litigation has clarified that it is unlawful to take adverse action to prevent the exercise of a workplace right, even if that right is not held at the time the action is taken (which the [Union] contends is not relevant).

F. Payment of the penalties

19.    The Court’s power in s 546(3) of the [FWA] to order that payment of the pecuniary penalty, or part of the penalty, be made to the successful applicant, and the case law that has construed that power as providing that the usual order is that the successful applicant should receive the penalty (Qantas contends the case law supports the usual order subject to the considerations identified in paragraphs 20(a) to (c) below).

20.    If the Court considers some of, but not all, the penalty should be paid to the [Union] (as contended by Qantas, but denied by the [Union]): the matters relevant to determining the amount that should be paid to the [Union] include: (a) the need to encourage proceedings being brought in the public interest to achieve deterrence of contraventions of the [FWA]; (b) the time, inconvenience and effort expended by the [Union] in the proceedings; (c) the need to avoid the [Union] receiving a “windfall” (the [Union] says the notion of a “windfall” is not relevant and contrary to Full Court Authority, a position with which Qantas disagrees); (d) specific and general deterrence (which Qantas contends is not relevant); (e) the resources committed by the [Union] in relation to the contravening conduct including in respect to servicing and assisting its members and the in-house bid process (which Qantas contends is not relevant); (f) the resources which will continue to be committed by the [Union] to the settlement administration (which Qantas contends is not relevant); and (g) that any penalty amount will otherwise be applied in accordance with the [Union]’s rules and consistently with the requirements of the Fair Work (Registered Organisations) Act 2009 (Cth) (which Qantas contends is not relevant).

35 What I propose to do (at section F below) is to organise findings into headings corresponding with, or incorporating, these identified considerations. But before turning to this task, it is appropriate to deal with two preliminary issues: first, a general issue related to fact finding (section D); and secondly, a specific issue raised at the compensation hearing and during the present hearing (section E).

D PREVIOUS FINDINGS AND FURTHER EVIDENCE

36 Except as where necessary below, I will not set out my earlier detailed findings. Those of especial importance can be found in the LJ (at 280–308 [93]–[202], 324–330 [282]–[305]) and the DJ (at 336–339 [6]–[18]). For convenience, however, it is worth making brief reference to the roles of several of the principal actors and some central findings:

(1)    Mr David, the CEO of Qantas Domestic and International, was found to be the relevant decision maker; he gave evidence as to the substantial and operative reasons for the outsourcing decision; and I fell short of being persuaded that Mr David did not decide to outsource the ground operations partly to prevent the exercise by the affected workers of their workplace right for the prohibited reason and in this respect, Qantas did not discharge its onus: LJ (at 329–330 [302]).

(2)    Mr Paul Jones, at all relevant times, was the Chief Operating Officer of Qantas Airlines, reported to Mr David, and was a member of the Qantas Airways Leadership Team; Mr Jones held the prohibited reason (LJ (at 322 [272], 325 [287])); Mr Jones and Mr David worked closely together and there is no reason to doubt that they exchanged their views with one another in relation to matters they perceived to be important to the business – and it is more likely than not that they would have been candid with one another in relation to their views as to the options and recommendations for the business of Australian Airports discussed at Qantas Group Management Committee (GMC) meetings: LJ (at 266 [60]).

(3)    Mr Colin Hughes was the Executive Manager of Qantas Airports and reported to Mr Jones; Mr Hughes also held the prohibited reason: LJ (at 330 [305]).

(4)    The GMC was comprised of the leading executives within the business; although the GMC was involved in the decision-making process, I did not find that the members of the GMC (or any member of it) acted as the decision maker (LJ (at 304 [185])); in the CJ (at 206–207 [36]) I expressed uncertainty about this conclusion (but did not alter my earlier finding).

37 Importantly, for reasons set out in the DJ, I made a declaration as follows:

1.    [Qantas] by its Chief Executive Officer, Qantas Domestic and International [Mr David], in making the decision announced on 30 November 2020 to outsource its ground handling and fleet presentation operations at ten Australian airports (relevant airports) to third party providers, engaged in conduct which contravened s 340(1)(b) of the [FWA], by taking adverse action against:

(a)     employees of Qantas who performed ground handling and fleet presentation work at the relevant airports and whose employment was covered by the Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018 (Qantas employees) for the purposes of Item 1(c) of s 342(1) of the Act by prejudicially altering Qantas employees’ positions; and

(b)     employees of [QGS] who performed ground handling and fleet presentation work at the relevant airports and whose employment was covered by the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS employees) for the purposes of Item 3(c) of s 342(1) of the Act by altering QGS’ position to its prejudice in relation to its contract for services with Qantas,

for reasons, which included to prevent the exercise by the Qantas employees and QGS employees in 2021 of their workplace right, following the nominal expiry of the relevant enterprise agreements, to: (i) organise and engage in protected industrial action or a protected action ballot for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement; and (ii) participate in enterprise bargaining, under the Act.

38 The Full Court judgment summarised my findings (at 40–42 [5]–[18], 44–62 [26]–[83]) and dismissed challenges made to those findings by Qantas (in its notice of appeal) (at 76–97 [140]–[218], 103–105 [242]–[252]) and the Union (in its notice of contention) (at 90–93 [191]–[203], 97–103 [219]–[241]). It also dismissed an appeal by the Union from the orders made in the RJ. The High Court judgment summarised those findings (at 588–590 [7]–[17] per Kiefel CJ, Gageler, Gleeson and Jagot JJ, 602 [59]; 602–603 [62] per Gordon and Edelman JJ).

39 But then, when the matter returned to me for further hearing, there were additional developments – not only without demur from any party but with their mutual consent.

40 In the CJ (at 193 [18]), I noted that further evidence was adduced by both parties at the compensation hearing, without objection, which addressed broader issues or matters of context and which, in some respects, qualified or modified facts previously found in the LJ or the RJ. Most importantly, this further evidence consisted of representations made in documents by both Qantas employees, consultants, and solicitors over which Qantas had, until shortly before the compensation hearing, claimed legal professional privilege (when verifying discovery) or client legal privilege (when evidence was adduced at the liability hearing) (waived material). I further noted that neither party disagreed that in determining the facts relevant to the compensation task, it was open to the Court to rely not only upon any facts found in the LJ or RJ, but importantly, “it was also open to the Court to make additional findings on the same topics or to revisit or qualify previous findings made (given the necessity to have regard to all of the evidence in ascertaining the facts relevant to the current compensation enquiry)” (at 193 [18]). All the evidence included, obviously enough, the waived material which revealed candid, contemporaneous communications not available to the Court when resolving the issue of liability.

41 Qantas accepts at this hearing (as it must, given the above) that “findings relevant to the contravening conduct and other considerations that bear upon the appropriate penalty have also already been made in the [CJ]”.

42 This is of significance, because notwithstanding the findings made in the LJ, following the receipt of the further evidence, I found, in the CJ (at 206 [35]), that in considering what actually went on in making the outsourcing decision, we are “looking through a glass darkly” and the reality was that non-privileged contemporaneous business records were prepared with an eye to eventual disclosure in litigation thought to be inevitable. This fact “and the unreliability of the affidavit evidence” were remarked upon as having “presented real challenges to fact finding in this case”: CJ (at 206 [35]).

43 There was some disagreement between the parties as to whether certain further findings sought by the Union were open to be made at this hearing for the first time. The position of Qantas was that in the light of my findings and the procedural history, it is not open for me to make some findings urged upon me by the Union and, specifically, the Union was precluded from submitting that Qantas made the outsourcing decision in the knowledge it was unlawful or was reckless as to its lawfulness. This is a matter to which it will be necessary to return.

44 At the penalty hearing, leaving aside the previous evidentiary record, which was treated as being before me, the parties helpfully co-operated in agreeing most relevant facts (under s 191 of the Evidence Act 1995 (Cth) (Evidence Act)) for the purpose of tender: see Ex A, Ex B and Ex D. Many documents were tendered relevant to disputed issues (Ex C and Ex E–H) and only one witness was called, Ms Walsh (T12.12). As already foreshadowed, to the extent necessary, I will record my findings directly and inferentially drawn from this evidence below.

E THE DISPARITY ISSUE

45 One matter canvassed in the CJ was the disparity between the affidavit evidence as to the making of the outsourcing decision adduced at the liability trial and the true picture as revealed by the material produced on discovery and, in particular, by the waived material.

46 On one level, the further revelation occasioned by the waived material was unsurprising. I was already critical in the LJ of the lack of accuracy in the evidence adduced by Qantas. Recognising this reality, in its final submissions at the penalty hearing, Qantas accepted that the affidavits and other evidence at the liability trial “did not present the reality in some respects”. Indeed, in the LJ, I made findings such as:

(1)    the representations in affidavits read at the liability hearing, which attempted to paint a picture that until after the assessment of the in-house bid (IHB) in November, persons such as Mr Jones and Mr Hughes were essentially agnostic as between different options, were described as “entirely unpersuasive”: LJ (at 294–295 [139]);

(2)    the “carefully drafted” evidence-in-chief of Mr Hughes and his subordinate, Mr Nicholas, was “tortured and overcomplicates what actually happened”: LJ (at 302–303 [179]);

(3)    the evidence of the in-house solicitor, Mr Andrew Finch, presented an incomplete impression as to the preparation of documents, which had the effect of bolstering the notion advanced by Qantas that certain steps were routine: LJ (at 277 [85]);

(4)    despite the fact that Mr Ian Oldmeadow had various meetings in relation to the outsourcing proposal throughout 2020, his attendance, the nature of his contribution, or any detailed expression of any reservations he had as Qantas’ industrial relations consultant, about adopting a strategy he was “very concerned about” and regarded as “high risk”, was not addressed in the affidavit evidence: LJ (at 287 [121]); and

(5)    there were differences between authentic aspects of the evidence given by Mr David orally, and the account given by him in his affidavit and these were “sufficient for me to harbour doubts about whether I [could] be satisfied as to the persuasiveness of the written evidence”: LJ (at 328 [296]–[297]).

47 But, as more was revealed following the LJ, the starker was the disparity between the affidavit evidence adduced by Qantas and the reality. Having reviewed the waived material at the compensation hearing, my concerns reflected in the LJ were fortified significantly. Then informed by a more complete and franker picture of what had gone on, following the compensation hearing, I noted I was “unconvinced the initial affidavits filed by Qantas prior to the liability hearing, as they presented the decision-making process, revealed anything like a candid and complete narrative”: CJ (at 194 [21]).

48 During final submissions at the penalty hearing, I remarked that I raised this concern at a recent case management hearing as being a matter that could be relevant to penalty (but noted I wished to check the transcript). Having done so, it is apparent my concerns were expressed at the compensation hearing and not at the most recent case management hearing. I noted (T579.30 –34):

HIS HONOUR: Notwithstanding the case-in-chief adduced by Qantas at the hearing. I mean, this is one of the things I have to worry about ... I mean, that case revealed in that affidavits reflected something which just simply did not accord with the reality of what was going on, in numerous respects, and as my findings made clear. And it’s only added to when one sees the candid contemporaneous legal advice that was given, and it does cause me concern, I must say.

49 In any event, on the first day of the penalty hearing, without objection, Mr Hutley SC for the Union asked Ms Walsh, during cross-examination, when exploring issues relating to the “culture” of Qantas (T38.30–40):

Did you go through the affidavits at the original hearing?---No, I did not.

Would you – do you recall when you read his Honour’s judgment that his Honour in relation to the compensation – sorry – the original hearing expressed some concerns about the affidavit material which was put before him?---Yes. I do recall that.

And have you taken any steps about those concerns expressed by his Honour from a point of view of the culture of Qantas?---Well, in respect that we have not had a matter such as this to contemplate those specific issues, I have not had regard to, but I’m aware of the commentary and the criticism, and if that was to arise again I would have regard to that.

50 During the Union’s oral submissions in-chief, I had the following exchange with senior counsel for the Union, Mr Hutley (T92.28–93.7):

HIS HONOUR: … I would like to receive submissions about it, but I went through, because they are before me as part of the record, I’ve looked at the respondent’s revised outline of submissions which were filed on 8 April 2021; the respondent’s closing submissions, which were filed on 11 May 2021; the respondent’s closing submissions supplementary submission response to the TWUs submissions, 6 May 2021, which was filed on 10 May – 11 May 2021; and the affidavits that were read at the liability hearing, I don’t know whether anyone wishes to say anything about the disparity between various aspects of those submissions and what we now know to have been going on within Qantas.

MR HUTLEY: Perhaps an appropriate way of dealing with it, my learned friends [deals with] it first, and I will deal with it in reply.

HIS HONOUR: Yes. I would be grateful because I just want to know what I should do with that, and how – to the extent that it is relevant, how that factors into the process because no doubt the people putting forward those submissions and reading those affidavits were acting on instructions.

MR HUTLEY: Now, so, again, reflective of the culture, this was a very large piece of litigation, which, by any terms, went disastrously for Qantas, which involved very serious misconduct, and your Honour had observed upon your concern about the affidavits. What is being done with it, about that? Nothing, because there hasn’t been another piece of litigation, as we understood her evidence.

Now, with respect, you prepare for these things if you’re truly seeking to deal with cultural issues long before the eventuality arises. It’s too late when you’re in the thrall – in the throws.

51 When Mr Gleeson SC for Qantas provided his oral submissions, I returned to the point (T174.1–176.21). The reference to “Mr Doyle” in the following exchange is to Mr Rohan Doyle, an industrial relations partner, and the solicitor for Qantas in this proceeding (LJ (at 301 [172])):

MR GLEESON: … But the second aspect is, whether it was thought or said or both, the best explanation of it is that at this point in August, when they are very close to the final decision being made as the documents indicate, Mr Doyle knows that it’s a decision being made for the three commercial reasons, and Mr Doyle is cautioning either himself or perhaps those who are listening to him that, of course, if a reason of this other character intruded into the process, then we would have a problem.

HIS HONOUR: Can I just pause there for a moment because that is the thing that really causes me a difficulty. You’re quite right to say that as of 20 March – sorry – that as at 10 August 2020, as Mr Jones says frankly at page 946, the decision has been made, and what they’re on about is mitigating risks, and that marries up all the representations in this document. Then you get the case that is run before me at trial, which is the complete opposite, that no decision was made, and as I say at [LJ [136]], all the affidavits and all the submissions were relevant that until after the assessment of the IHB in November, persons such as Mr Jones and Mr Hughes were essentially agnostic as between different options. Now, I described that as entirely unpersuasive, but that was the case that was run. That was the case that emerged from the affidavits. That was the case that was opened on. That was the case that was closed on. How conscientiously could that case be run in front of a judge of the court when someone knew what was known in these meetings on 10 August, Mr Gleeson? And how does that factor into the need for general deterrence? To say what I said the other day, you can’t come along and run false cases in court.

MR GLEESON: I have accepted the question of conduct of the case is relevant.

HIS HONOUR: But isn’t it serious?

MR GLEESON: That’s my first submission. I’ve accepted that.

HIS HONOUR: Yes.

MR GLEESON: My next submission is, your Honour needs to exercise some caution and restraint within the confines of what is an adversarial proceeding. This is not to undermine my first submission, but you put this concern to Mr Hutley on Monday, and he made very clear how he puts his case. His case is this goes to culture. He says – he did not make the type of submission your Honour just put to me a moment ago. So there is an important issue. It’s not just a procedural one. But in terms of the nature of an adversarial penalty hearing, I’m not excluding the court’s ability to raise matters squarely and then have them considered. But it starts as an adversarial hearing, which was one of the points the High Court re-emphasised in, I think, it was Fair Work Building Inspector in 2015, which your Honour recalls is the time when the notion that the parties could even make submissions on the appropriate penalty, which had received a lot of traction in this court, particularly in the Queensland registry, Dowsett J and others, that effectively this is a quasi-criminal trial, and so neither side can tell the court.

HIS HONOUR: Yes.

MR GLEESON: And the High Court re-emphasised that it is civil adverse litigation, and so the issues are those joined, and the submissions are those joined, which is why Mr Hutley is entitled to say, “I want $120 million.” On the Dowsett J approach, he should not have been permitted to say that, but the High Court has said what they have. So my note of caution to your Honour is, within the adversarial process, the primary thing we must meet is Mr Hutley’s suggestion of a cultural problem. If your Honour says, “Well, as the, in effect, the sentencing judge, the penalty judge, I cannot put out of my mind the observations I have not only formed but have expressed in my judgments as to the conduct of the case”, our answer to that is you may look at them, and that is why we have collected each paragraph where your Honour has made such an observation. We are urging your Honour caution in going a further step and saying – making any finding – we would oppose this – any finding to say there was improper conduct of litigation before me by those representing Qantas at the time. We would urge your Honour - - -

HIS HONOUR: Well, I wouldn’t do that without giving procedural fairness to the individuals.

MR GLEESON: There would need to be procedural fairness to the individuals, and any such finding would implicate at least the solicitors running the case. They may implicate counsel who ran a case and put their name on submissions, depending upon what counsel were instructed. They would certainly implicate the instructors. Now, what we submit is that is not an exercise that you should entertain at this stage. What you should do - - -

HIS HONOUR: Well, can I say this because I don’t want to [alarm] people. I meant what I said the other day. I don’t regard myself as a roving legal service commissioner, and – but I do – and if I was intending to make such findings, I would already indicate that I would feel it appropriate that people be represented and have the opportunity of putting on submissions.

MR GLEESON: Yes.

HIS HONOUR: So I don’t want people having unnecessary concern about that.

MR GLEESON: Thank you, your Honour.

HIS HONOUR: But I do want to say this, that it may – it seemed – I must say after now hearing this the three – that seems the most aggravating aspect, and I don’t mean aggravating in the literal sense to me, of the conduct. It’s expressly not embraced by the applicant, and the question is, well, given the nature of the adversarial proceeding, I say, well, they’re not interested in it. Therefore, I put it at nought and don’t factor it into the penalty process, or independently I decide that I have to have regard to it. But the focus is on Qantas’ conduct, not on the conduct of the legal practitioners.

MR GLEESON: Yes. And – thank you, your Honour. So that’s – we are grateful for that. There is also at least the possibility of a more benign explanation of what became exposed before your Honour in the case. Now, what I mean by that is this: to the extent we have and I have accepted criticism on behalf of Qantas about the process, and I’ve tried to make that concession tolerably clear, and Ms Walsh made this concession clear as well when she said, “What we’ve learnt from this is we insufficiently interrogated ourselves as to why we’re doing this now.” That is where the error lay. So we’ve made those concessions, and what got into this process, which should not have got into the process, was too intense a focus upon, “Can we defend those commercial reasons?” And to the extent the case was presented to your Honour in the areas that you’ve expressed concern about, including not sufficiently indicating that they were pretty much at the go stage - - -

HIS HONOUR: Well, it was more than not sufficiently indicated. It was running a precisely opposite case because they thought – because obviously it was thought that that better suit the interests. I mean, it’s just something you don’t necessarily see in other forms of – I mean, I – anyway, I just find it strange.

MR GLEESON: So I put my submission, your Honour, about urging – restraining your Honour has made observations about what you would do if you were in the territory of taking that matter further.

52 Following submissions in reply, and without, it seemed to me, detracting from the acceptance by Qantas that the “conduct of the case is relevant” it was submitted it was not open for the Court to make additional (T211.40–43):

… adverse serious findings – about the way our case was conducted without identifying [an] individual and giving them procedural fairness extends to the proposition that Qantas can have such a finding made against it because the litigation can only be run by people instructing lawyers.

53 Reference was then made to the matters Qantas had accepted could be taken into account for their relevance in the hearing (T215.1), being that: (a) Qantas accepted that it allowed the process to become too focussed on protecting any decision from a legal challenge, at the expense of more robust interrogation of the real reasons for the decision; and (b) as noted above, the affidavits and other evidence at the liability trial did not present the reality in some respects, such as on the power of attorney issue (LJ (at 300 [170])) and presenting the decision as some organically evolving process where management agonised over the IHB process: see LJ (at 252 [19]), CJ (at 229 [140]).

54 In the light of the above, and after rereading the transcript after I had reserved, I thought it was prudent to seek some clarification from Qantas as to whether I was correct in my understanding of what it accepted was relevant and whether it said everything it wished to say in response to written submissions made by the Union that had not been specifically addressed by either party during final address.

55 In particular, I requested Qantas confirm whether, consistently with my understanding following the above exchanges, it had placed before the Court all material upon which it relied in relation to the question as to whether it ought be concluded that Qantas adduced positively and materially misleading evidence before the Court at the liability hearing (in the respects identified at [53] above and as to the contemporaneous motivations of Messrs Jones and Hughes); and whether Qantas accepted that if a conclusion was made that positively and materially misleading evidence was placed before the Court, this would be a proper consideration in assessing penalty (as it would be relevant to both specific and general deterrence).

56 This reference to the characterisation of the evidence as “positively” and “materially” misleading repeated the words used in the written submissions of the Union on 24 April 2025 (and 14 May 2025) (at [7] and [93]). The Union contended that Qantas presented affidavits at the liability hearing “that were in several material respects inaccurate and, others, materially misleading” and “were, unreliable and, in a number of respects, positively misleading” (a submission which was said to be exemplified by Mr Finch’s evidence about the process for the drafting and execution of the entirely unnecessary power of attorney: see LJ (at 275–278 [82]–[86], 299–302 [161]–[175], 326–328 [291]–[296])).

57 The response of Qantas to my request for confirmation can be broadly summarised as follows:

(1)    Qantas’ conduct of its case at the liability hearing may be relevant to general and specific deterrence;

(2)    the Court may consider the findings already made;

(3)    as to the affidavit evidence of Messrs Jones and Hughes, the Court has already made findings as to the affidavit evidence at the liability hearing, which are accepted as relevant in the fixing of an appropriate penalty;

(4)    as to the findings already made about Qantas’ conduct at the liability hearing, it is open to the Court to take them into account in finding that “Qantas should not receive any benefit for an early recognition of the contravention and that it will not reduce the penalty below where it might otherwise be” and the “Court should exercise restraint in the instinctive synthesis in going the opposite way”;

(5)    it is not open to the Court to go a step further to find that “Qantas adduced positively and materially misleading evidence before the Court at the liability hearing” in part, because the word “positively” conveys that Qantas engaged in deliberately improper conduct by “presenting and relying on one or more facts that were untrue (and, it would seem, known to be untrue)”;

(6)    the issue as to whether “Qantas adduced positively and materially misleading evidence at the liability hearing”, cannot be fairly litigated without the clearest of identification of who the individuals are on behalf of Qantas who are said to have been involved; what specific pieces of evidence are relevant; and what specific acts by the individuals evince their wrongdoing; and

(7)    the lack of precision in the Union’s written submissions causes insuperable difficulty in considering this issue; this difficulty is compounded because the oral submissions made on behalf of the Union at the penalty hearing were directed to the issue of “culture” and “were not that Qantas adduced ‘positively and materially misleading evidence’”.

58 The point was then made, several times, that the Court is not “sitting as a disciplinary tribunal” and cannot “suo motu, identify ‘questions’ that it decides it wishes to investigate and potentially determine adversely” and it is not open to the Court to investigate such a “question” consistently with proper judicial method and power.

59 In response, the Union agrees Qantas’ conduct of its case at the liability hearing is relevant and the Court may consider the findings made in the LJ and CJ, including the findings made as to the evidence given by Messrs Jones and Hughes. The Union maintains that it directed its case to Qantas’ management of the unlawful outsourcing exercise and the structure which it set up, which was apt to produce a circumstance where affidavits were presented to the Court that were not candid in the respects found by the Court: T210.31–32, T210.41–42 and T211.1–8. It further maintains that: (a) the evidence put forward by Qantas did not reflect the reasons of Qantas: T61.15–18; (b) the waived material provided “graphic confirmation of the Court’s findings about the proscribed motivations of Mr Jones and Mr Hughes” (see T191.44–47); and (c) its submissions (see [56] above) were directed to the Court’s conclusions reached at the liability and compensation stages about the affidavits filed by Qantas: see for instance CJ (at 194 [21], 206 [35]), and LJ (at 275–277 [82]–[83], 277–278 [85]–[86], 286 [118], 287 [121]–[122], 300–301 [170]–[174], 303 [180], 325–328 [289]–[297]).

60 The Union also expressly confirmed it did not (and does not) advance a case criticising Qantas’ solicitors (both in-house or external) or the counsel involved in the preparation and presentation of Qantas’ case and affidavits, and does not contend that any person procured or put forward a particular witness’ evidence knowing that the witness was not being candid.

61 In the end, leaving aside questions of weight and whether the issue is relevant to more than the absence of co-operation, there is little difference between how the parties generally approach this issue. Further, this approach seems to me to be sound. But to avoid any misunderstandings, it is worth making seven preliminary points as to how I propose to deal with what I will describe as the disparity issue and consider it potentially relevant to the determination of penalty.

62 First, as noted above, I found in the CJ (at 194 [21]): “while the written evidence was carefully drafted and settled by lawyers, I am unconvinced the initial affidavits filed by Qantas prior to the liability hearing, as they presented the decision-making process, revealed anything like a candid and complete narrative (T633.10–14)”; this finding going to the “conduct of the case” at the liability hearing, and the response of Qantas to this finding, is relevant to the then “culture” of Qantas and its alleged change, and hence to the need for deterrence.

63 Secondly, as a general proposition, a Court should only make findings, particularly any additional adverse findings, insofar as they are necessary to resolve the issues at hand.

64 Thirdly, in any event, given the state of the evidence, I do not have any secure basis to understand precisely what happened during privileged communications in the process of preparing for, and conducting, the liability hearing.

65 Fourthly, although a penalty hearing involving a discretion to determine what is “appropriate” having regard to all the relevant circumstances, this proceeding is of an adversarial nature and the Court should be wary in embarking on a course of investigating any matter on its own motion and making findings not the subject of identification by the party seeking relief. Consistently with the way issue has been joined, I do propose to consider whether there is a basis to find Qantas engaged in deliberately improper conduct by presenting and relying on one or more facts that were untrue (or to make any such finding).

66 Fifthly, and relatedly, I have not heard from any individual involved in the conduct of the liability hearing; consistently with my indication at the conclusion of the hearing, and the approach taken in the oral submissions of the Union, no findings I make are intended to be critical of the conduct of any individual involved in the running of the litigation.

67 Sixthly, any observations below as to the disparity issue are intended, and should be perceived to be, directed to whether my earlier findings, have been understood or recognised by the contravenor and thereafter adequately investigated and addressed as part of its asserted process of corporate cultural change. The position of the Union is, of course, that it has not been, and that this is relevant to the issues of deterrence – I will deal with the merits of this submission below. Further, part of the final argument of Qantas as presented in its closing submissions, directed to general deterrence, is that this case has already been a “wakeup call for corporate Australia” on the topic, among other things, of “how litigation should be prepared for and run”; the merits of this submission will also be considered below.

68 Seventhly, and critically, and at the risk of repeating the first point, despite my reference (see [51] above) to the truism that “you can’t come along and run false cases in court”, the disparity issue has no relevance, in and of itself, as some freestanding matter going to the proper administration of justice. Plainly, as I have already explained, any notions of retribution or denunciation going to deficiencies in the evidence adduced do not have any role to play and must (and will) be put to one side. The disparity issue, or perhaps more accurately, the disparity sub-issue, is relevant because it goes to the broader corporate culture of Qantas, which was reflected in the structuring and management of the outsourcing exercise, and which resulted in deficient evidence being adduced. The issue goes beyond considering whether Qantas’ conduct at the liability hearing bears upon the absence of co-operation: as the Union correctly submits, how much the culture that gave rise to the contravening conduct has been proven to have changed is relevant to identifying the necessary remedial response focussed, as it is, on deterrence.

F FINDINGS AS TO THE RELEVANT CONSIDERATIONS

69 In this section I propose to make findings (or identify earlier findings) which are material to the relevant considerations (see [34] above).

F.1    Number of Contraventions and Maximum Penalty

70 As noted above, the number of contraventions of s 340(1)(b) of the FWA committed by Qantas was 1,820, reflecting adverse action taken against the affected workers (leading to a maximum penalty available to be imposed of $121,212,000).

F.2    The Outsourcing Decision as a Single Act

71 Although the outsourcing decision was a “single act”, it was a carefully planned act directed at, and affecting, a very large number of employees.

F.3    Involvement of Senior Management of Qantas

72 The contravening conduct was found in the LJ to have involved the following persons who could be said to comprise members of Qantas’ senior management: Mr David; Mr Jones; and Mr Hughes.

73 This is sufficient to conclude that senior management was involved in the contravening conduct, but the Union places significant reliance upon the waived material to reveal the involvement of others in the decision-making process. The Union notes that following the LJ, diary notes were revealed, which disclosed details of two video conferences held on 1 June 2020. Partly in reliance on this material, I found (CJ (at 195 [26])) that during these 1 June conferences, five options presented in a slide pack were discussed, which included the proposal to outsource and that the proposals were to be presented to Mr Alan Joyce (then group CEO) the following day, so that Mr Joyce could “understand the whole range of options” and “identify all the options in between”.

74 I also referred to the involvement of “long-standing industrial relations adviser to Qantas, Mr Oldmeadow” who “always held” the view Qantas “not being in ground handling [was] the right thing”: CJ (at 205 [30]–[31]). The notes record that Mr Oldmeadow was acutely concerned as to the risk of making the outsourcing decision and was conscious of the “need to map these issues out for Alan. It’s going to be a very bloody fight. And who knows where the Government will go at the moment”. Mr Jones also referred to Mr Joyce when he said he needed “clarity on point of view of confidence about ability to deliver on these options. But from legal and industrial point of view, what timeline is reasonable, and what is the level of risk. Felt as though for each of these, HSF advice was we could pick these options, not without risk, but need to go to Alan tomorrow”.

75 More generally, and as already noted above, I found (CJ (at 206–207 [35]–[36])) when it comes to ascertaining precisely what went on within senior management of Qantas:

… we are still looking through a glass darkly. The reality that contemporaneous business records were prepared with an eye to eventual disclosure in litigation thought to be inevitable and the unreliability of the affidavit evidence have presented real challenges to fact finding in this case. This problem has been exacerbated by the fact that no minutes or notes were discovered of the GMC or a GMC Sub-Committee or the Project Restart Steering Committee (formed by the GMC): LJ (at 253 [22]). What was communicated orally, of which there is no record, remains obscure, and, as I found (LJ (at 283 [108])), the use of a “voice over” expedient by Mr Jones in dealing with the GMC, on one occasion, was an attempt to prevent his real views being recorded in a contemporaneous document likely to be preserved. In this regard, it is notable that one of the most revealing documents in the case (the handwritten notation from Mr Jones: “Voice-over labour Gov Lockin benefits + open EBAs 2020 DEC”: see LJ (at 266–267 [63], 272 [67], 281–282 [102]–[103])) was only disclosed because a standard discovery order was made (opposed by Qantas) and because Mr Hughes just happened to scan the handwritten notes made by Mr Jones and sent the scanned annotated document to Mr Nicholas (LJ (at 266 [62])).

Although, in the end, these concerns about the completeness of the evidence are heightened by the revelation of specific discussions between Mr Jones and the absent Mr Joyce whereby the CEO, as early as May, “wanted to understand the whole range of options” (held at a time when Qantas “will never have another time like the present”) leaves me with a sense of disquiet and uncertainty as to precisely what went on within the upper echelons of Qantas leading up to the outsourcing decision. What can be said is that any decision to outsource in 2020 was not straightforward and despite the enthusiasm of some, those with the most industrial relations experience were chary about Qantas going down the outsourcing road.

(Emphasis added)

76 The Union places emphasis upon the revelation of the “central importance of Mr Joyce to the decision-making process in 2020”, that Mr Joyce was “someone who was being engaged with by senior personnel involved in the decision-making process” and that the “efforts of senior managers and advisors at the meeting of 1 June 2020 appear to have been directed to analysing and presenting options to the CEO and Managing Director for his evaluation, opinion and decision”. Reference is also made by the Union to Qantas’ Board and GMC being consulted and engaged, noting that Mr Jones was found to have made his “voice-over” during the 29 May 2020 GMC meeting.

77 In response, Qantas contends that the Court cannot now entertain a submission that Mr Joyce was involved in the decision-making process or that Qantas sought to hide Mr Joyce’s involvement by: first, “invoking legal professional privilege to cloak Mr Joyce’s involvement”; and secondly, “the selection of Mr David to give the appearance that Mr David was the solitary decision-maker for this most momentous decision”. Primarily, this is because the Union did not put this proposition to Mr David at the liability hearing or at the compensation hearing.  Qantas also submits that the proposition now advanced by the Union is inconsistent with the finding (CJ (at 210 [52])) that Qantas “fastened” upon Mr David as the decision maker because Qantas considered “that his selection best assisted the inevitable legal defence of the outsourcing decision in this Court” and the terms of the declaration itself (set out at [37] above).

78 As it turns out, in this aspect of the case, I do not need to resolve the procedural fairness argument raised by Qantas.

79 I meant what I said in the CJ: I used the metaphor drawn from the First Letter of St Paul to the Corinthians advisedly; it reflected the reality that we have an imperfect vision of precisely what occurred “within the upper echelons of Qantas leading up to the outsourcing decision”. Even though, in the wake of the waived material provided to me after the LJ, I harbour doubts as to the conclusion I reached in the LJ as to Mr Joyce not being directly involved in the outsourcing decision, it is unnecessary for me to explore these doubts further and attempt to resolve them. The same applies to the GMC or other members of the Board.

80 Consistently with the declaration made, I will continue to proceed on the basis that Mr David was the decision maker directly assisted by the involvement of Mr Jones and Mr Hughes. Those persons were regarded as being sufficiently senior members of management to propose, evaluate and then make such a signally important decision on behalf of the company. Qantas does not suggest that the decision was not made by senior management within the organisation, just because it was not made by the CEO or the Board. Accordingly, as part of the synthesis of factors discussed below, the involvement of persons regarded by Qantas as sufficiently senior to propose, evaluate and then make a decision of this importance goes to the nature of Qantas’ contravening and is relevant to assessing the demands of deterrence.

F.4    Whether the Contravening Conduct was Deliberate or Reckless

I    Introduction, Procedural Fairness and Mr David

81 A related but more complicated point arises in dealing with the submission of the Union that I should find that the contravening conduct of Qantas was deliberate or reckless.

82 Qantas contends that because no finding has been made to date that Mr David knew the decision would be unlawful or reckless, the Union should not now be permitted to seek such a finding. Given the Court found it could not be satisfied Mr David was motivated by the prohibited reason, it cannot go the next step and say he knew it was unlawful or was reckless to that reason. Further, by no later than the compensation hearing, the Union had a full opportunity to seek that finding and make submissions about it, including with access to the waived material which had been produced to them in March 2024.

83 Mr Hughes, who like Mr David gave evidence at the compensation hearing, was cross-examined. As noted above, this cross-examination occurred after the Union had in its possession the waived material; despite this, it was never put to either of them that they knew or were reckless to the outsourcing decision being illicit. To allow such submissions to now be made would be procedurally unfair.

84 I consider that there is substance in the submission of Qantas that it would be procedurally unfair for such a serious adverse finding to be now made against either Mr David or Mr Hughes, who were cross-examined at the compensation hearing. The state of mind of both men in the counterfactual world was squarely in issue at that hearing and this involved, in part, revisiting their state of mind in the real world by reference to the waived material.

85 Additionally, when it comes to Mr David, in the light of my findings in the LJ, I could not be satisfied Mr David was cognitively aware that in making the outsourcing decision he was engaging in conduct that was contrary to the law. Mr David was intent on making the decision and followed legal advice as to how to do it. Indeed, one aspect of his evidence brought into sharp focus the uniqueness and artificiality of what was going on. Contrary to his affidavit evidence, as it turned out, his subjective but incorrect understanding was that in acting he was exercising a power granted to him under the unusual power of attorney prepared by lawyers and signed by Mr Joyce: see LJ (at 326–328 [291]–[296]). It is unnecessary to make a finding, but the evidence is at least consistent with Mr David thinking he had been quarantined, that the legality of this process and the defensibility of the decision had been artfully structured, and the process had been sufficiently “cleared” with the lawyers to mean it could pass muster when later scrutinised.

II    Whose Knowledge is Material?

86 The procedural fairness issue does not arise in the same way in relation to Mr Jones, who was not called by Qantas at the compensation hearing.

87 During the penalty hearing (at T208), senior counsel for the Union accepted that the high-water mark of the case against Qantas as to knowing or reckless illegality concerned the knowledge of Mr Jones. It was sufficient, the Union submitted, to find that Mr Jones, as a “very senior officer”, had actual knowledge that the prohibited reason was partly motivating the outsourcing decision.

88 Although the Union contended I should go further, given the way the case was presented, it is sufficient to proceed by focussing primarily on the knowledge of Mr Jones.

III    The Relevant Material and the Union’s Contentions

89 I will come back to the findings I make in relation to Mr Jones below, but for completeness, given the submissions of the Union, it is convenient to deal initially with the more general contention that others within Qantas (that is, other than Mr Hughes and Mr Jones) (relevant Qantas actors) must have known of the prohibited reason of Mr Jones and of its unlawfulness.

90 The particulars of these other relevant Qantas actors lacked specificity, other than they dealt with Mr Jones at the time leading up to the outsourcing decision, but it is unnecessary to pursue this particularisation point for present purposes.

91 Unsurprisingly, the Union contends that the conclusion other relevant Qantas actors must have had (or ought to have had) knowledge of the illegality is compellingly justified by the following cross-examination of Ms Walsh (T32.25–33.5) in relation to the transcript of the 1 June 2020 meetings, which I had set out (CJ (at 195–205 [27])), and which Ms Walsh had read and considered:

… And you, as an experienced industrial relations expert, can I suggest to you, on reading this transcript, were struck by the fact it was pretty obvious that this decision was being infected by improper reasons. That’s correct, isn’t it?----Upon reading this, there is a reflection that is also when there was challenge to the reasons being given, that people probably weren’t listening to the challenge that was being made at the time as well.

Well, Mr Jones joined this meeting, didn’t he?---Again, from the transcript that’s how I understand it, but I wasn’t there.

And do you recall what reasons he advanced for proceeding with this decision?---I – I don’t recall.

Well, does it accord with your recollections that he saw it was important to move swiftly because of the risk of a protected industrial action?---Well, that was the finding, so, yes, I agree with that.

And when you read this document, it struck you that that was obvious that that was one of his reasons for advancing this decision. That’s correct, isn’t it?---It was – it was clear from the decision of his Honour that that was one of the reasons.

HIS HONOUR: No, you were asked about this document. If you could attend to that question, please?---Well, to the extent that it was clear that there were inappropriate reasons, Mr Jones being one of them, for the – the reason being made at that time, yes.

MR HUTLEY: And it was apparent to you as an experienced industrial lawyer that that was a case from reading this document. That’s correct, isn’t it?---Yes.

92 Notwithstanding this concession, there is substance in the caution sounded by Qantas that there is need to have regard to all the findings and the evidence.

93 Turning to this material, the obvious starting point is that I was affirmatively satisfied that part of Mr Jones’ reasons for recommending to Mr David that the outsourcing decision be made was to prevent affected workers disrupting services in 2021 by taking protected industrial action when, it was hoped, services might be getting back to usual. Further, I was satisfied that the existence of the open enterprise agreements was a consideration: LJ (at 322 [272]).

94 Part of the material relied upon to support this conclusion was Mr Jones articulating his “voice-over” at the 29 May 2020 GMC meeting about the imperative to avoid “open EBA’s 2020 DEC”.

95 Since that time, the waived materials have considerably fortified my conclusion, including the notes of the 1 June 2020 conference, where it was belatedly revealed:

(1)    the process of making this decision was a world away from a usual, organic business decision being made; early close attention was given to fashioning the process to assist Qantas being able to present the picture it wanted to paint to a Court and help withstand inevitable legal challenge; Mr Oldmeadow and Mr Jones ruminated about whether it would be Mr Jones or Mr David who would be the decision maker, which is consistent with a concern about the reasons being identified for the decision unravelling;

(2)    Mr Oldmeadow observed that “there’s some stuff I’ve heard verbally on reason, which I’m a bit concerned about to be honest”; and

(3)    Mr Jones, in one of his concluding comments to the attendees, identified the illicit reason in stating “also have an open legacy agreement towards the end of the year. If we don’t take this opportunity we never will”; notably, no one dissented from this remark nor thought to upbraid Mr Jones at the meeting.

96 Additionally, in the meeting held on 5 June 2020 (attended by, among others, Mr Doyle and Mr Brad Popple from Freehills, Mr and Mrs Oldmeadow, Mr Simon Brown and Ms Sonia Millen, Mr Jones and Mr Hughes), Mr Doyle’s handwritten notes now reveal the following:

(1)    that a legal challenge was perceived to be inevitable and there was a need to “[e]nsure ‘pressure testing’ privileged + not before DM too much testing risk”; hence the “reasons” would need to be “pressure tested” and that testing would be cloaked in legal professional privilege and not provided to the decision maker to “enhance the prospects of the decision passing muster at a general protections hearing”; this is said by the Union to support “an inference that there was a consciousness on the part of Qantas that the reasons for the decision were not purely licit or that there was at the very least an appreciable risk that they were not”;

(2)    under the heading “GP issue” a reference is made to “DM need to lead evidence from each”; hence it is said to be clear that Qantas “was selecting decision-makers with a view to enhancing its position in litigation”;

(3)    a focus on what documents would be discoverable and litigation strategy, well in advance of any decision, including a note which began “Option 5 – are we confident on legal case for 5”, and which included:

* Written advice + conversation

* Project plan

* evidence

* witnesses

* seniority

(4)    consistently with this approach, Mr Doyle made a note about the decision maker(s) and the imperative to isolate them:

* Paul DM + Alan + Vanessa + Andrew David

try + isolate as far as possible

Paul being critical witness Supported by Colin + Paul Nicholas

* Try to isolate DM careful re discoverable documents

(5)    a reference to “Paul”, that is, Mr Jones, who referred to the fact Qantas “have 7 months prior to QAL EBA”, and beneath this is a note relating to bargaining, which stated “Delay bargaining> force to MSD? Could go early on MSD” (“MSD” being a reference to a “majority support determination” under s 236 of the FWA which operates to create a “notification time” (see s 173(2)) commencing enterprise bargaining); hence, the imperative to avoid bargaining was apparently discussed.

97 As I noted in the LJ (at 282–283 [107], 288–290 [127]–[129]), as the “AA restart summary” presented to the GMC ten days later demonstrated, Mr Jones was aware the Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018 (QAL Agreement) opened in late December of 2020, and there was a risk this would “concentrate power back into the [Union] early in the new calendar year when [Qantas] are growing domestic demand back and Virgin is potentially up on its feet” and that the “longer a decision is deferred the greater the increase in operational continuity risk; [and Qantas] are also unlikely to make any significant change during 2021 with an open QAL EA”.

98 A Teams meeting was then held on 10 August 2020. Among others, Mr David, Mr Finch, Mr Jones, Mr Hughes, Mr Oldmeadow, Mr Doyle and Mr Popple were invited to attend the meeting. Mr Doyle made handwritten notes on an email print out of the meeting. The notes included the following:

(1)    “Careful re accelerated timeline due to bargaining, PIA etc”;

(2)    “Note PIA re QGS + QAL EAs”; and

(3)    “If time too long QD ramps up + therefore higher risk re PIA impacts * Careful re factoring in EA negotiations + PIA> Careful no allegation re doing this due to lack of industrial leverage”.

99 The Union submits the imperative to be careful to factor in enterprise agreement negotiations and protected industrial action reflects an awareness, of at least some relevant Qantas actors, that in 2021 Qantas Domestic would ramp up and the Union and the affected workers would have industrial leverage which they lacked in 2020.

IV     Summary of Qantas Submissions

100 Qantas places significant reliance on a draft advice from Freehills dated 10 June 2020. This draft records that Freehills were initially instructed that the reasons for the outsourcing decision were the three commercial reasons. The draft also records that Freehills advised, based on the documents it had seen to date and the discussions it had with Qantas, that the only reasons for making the decision were consistent with their instructions.

101 This is said to support the inference that no relevant Qantas actors had identified, by the time of this draft (and notwithstanding any discussions prior to this date), the risk that the outsourcing decision might be being made for the prohibited reason. This includes the 1 June meetings and the 29 May 2020 GMC meeting in which Mr Jones noted “Voice-over labour Gov Lockin benefits + open EBAs 2020 DEC”: LJ (at 281–282 [102]–[103]).

102 It is further said the draft advice confirms that to the extent Mr Jones had made comments at various points about the QAL Agreement being open at a certain date, or that this was an opportunity that had to be seized now, it had not “twigged” to relevant Qantas actors hearing those statements that: (a) this timing consideration was an operative reason in Mr Jones’ mind; or (b) that Qantas now had another operative reason and legal advice needed to be revisited.

103 In support of this submission, Qantas also pointed to other documents around this time. On 11 June 2020, Mr and Mrs Oldmeadow provided advice regarding the industrial risks of outsourcing ground handling operations: LJ (at 284–288 [116]–[125]). This advice did not identify that the outsourcing decision was being made for a prohibited reason notwithstanding it identified the “QGS EBA” as open. Shortly thereafter, Mr David’s talking points (prepared by Mr Hughes and sent to Mr David and Mr Jones) state, in part, “[s]pent a day with Freehills and conclusion is it is low legal risk”.

104 Qantas accepts that, “with the knowledge of this case, an error has crept into the process” and what was later exposed as the critical risk had not been identified by Qantas or Freehills in the briefing process. The result was that “legal advice that appeared proper and safe to act upon was materially incomplete, but not intentionally so in fact or as anyone picked up at the time”.

V    Consideration

105 What does one make of all this?

106 Although the contents of the draft advice prepared by Freehills cannot be discounted as an indication as to what the solicitors were thinking when it was created, I disagree that the draft advice amounts to anything like irrefragable evidence that those dealing with Mr Jones, being relevant Qantas actors, were unaware that one of his reasons for recommending outsourcing was unlawful. The document is, after all, a draft. For reasons unexplained in the evidence, it was never finalised. Why a draft document rather than a final advice would have been sent by a solicitor to a client (other than as a means of clarifying instructions, or assumptions given, or the scope of a retainer), is not immediately apparent to me. Given the lack of any evidence as to why a final written advice was not provided, the non-completion of the advice seems to raise more questions than it does answers.

107 But having said this, to make a finding relevant Qantas actors knew Mr Jones was involved in making the recommendation while he was partly motivated by an illicit purpose at the time of the decision would involve a finding of some seriousness.

108 Notwithstanding the curiosities of some of the exchanges on 1 June, and the evidence of Ms Walsh, bearing in mind the gravity of such a finding (see s 140(2) of the Evidence Act), I cannot reach a definite, affirmative conclusion that I am reasonably satisfied any relevant Qantas actors (that is, persons other than Mr Jones and Mr Hughes) must have known of the unlawfulness of the prohibited reason.

109 There is a danger in fastening upon some representations and, with the benefit of the minute examination of events occasioned by these hearings, jumping to a conclusion as to what someone in the position of the relevant Qantas actors must have been thinking and appreciate the legal consequences that flow from that realisation (or be indifferent to those legal consequences).

110 As I have previously found, this decision was lawyered from the start and up to the hilt. It was all structured in an artful and careful way designed to maximise the chance of Qantas being able to defend its decision in anticipated litigation. It is unclear who of the relevant Qantas actors knew the proposed decision: (a) would amount to “adverse action”; and (b) that such action could not legally be taken for a reason which included preventing the exercise of the workplace right of the affected workers to organise and engage in protected industrial action and participate in bargaining in 2021. Given the known intense involvement of specialist lawyers and consultants, it is at least as equally probable as not that the relevant Qantas actors would have thought the decision-making had been fashioned and quarantined in such a way as to make the ultimate decision, however controversial, licit and hence defensible.

111 Of course, the position concerning Mr Jones is different and more troubling.

112 Even without the benefit of the confirmatory waived material, in the LJ (at 272–273 [67]–[68], 281–283 [103]–[109]), and at the risk of repetition, I made several related and important findings concerning Mr Jones, including that:

(1)    he wrote “+ open EBAs 2020 DEC”, which was a record of his view that the option of outsourcing was “superior” given that there would be “open EBA 2020 DEC”, namely, both the QAL Agreement and the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS Agreement) would be open from (the end of) December 2020;

(2)    he had a concern that any opportunity to obtain the financial benefits of outsourcing was a limited one and that one reason for pursuing outsourcing in 2020 was to avoid Qantas being in a position where it had to bargain with the Union and its members from December 2020 and face the prospect of industrial action – just when he then considered (regrettably over-optimistically) that flights might just be getting back to some degree of normality in 2021;

(3)    he was well aware the QAL Agreement opened at the end of 2020, and there was a risk this would “concentrate power back into the [Union] early in the new calendar year when [Qantas] are growing domestic demand back and Virgin is potentially up on its feet” and that the “longer a decision is deferred the greater the increase in operational continuity risk; [and Qantas] are also unlikely to make any significant change during 2021 with an open QAL EA”;

(4)    he considered it prudent to ensure that if his views reflected in these aspects of his annotations were conveyed to the GMC, it be by way of “voice-over”, rather than recording them in a document; this “voice-over” expedient was an attempt to prevent his real views being recorded in a contemporaneous document likely to be preserved; and

(5)    he was disingenuous and feigned a lack of recollection as to what was in his mind when he made the “voice-over” annotations and also pretended a lack of recollection as to what was discussed in the meeting when the words were affixed and what he later conveyed to the GMC (by way of “voice-over”).

113 Why would someone go to this trouble unless they considered it was prudent to ensure there was no complete written record of what they said to the GMC reflecting the true state of their mind?

114 Consistently with my findings in the LJ and my observations of him as a witness, I am amply satisfied that Mr Jones knew it was better for Qantas for him to take the active step of ensuring an important (and apparently comprehensive) contemporaneous document did not record one of his reasons for supporting the proposed outsourcing decision. This proposition was squarely put to him at the liability hearing (T525.39–526.15), but as my findings in the LJ make clear, I rejected his response as false. But the question as to whether Mr Jones knew that his reasons could then be legally attributed to the carefully chosen decision maker (and then to Qantas), such as to result in contravening conduct by Qantas, is one I have some uncertainty about.

115 I do not think it is necessary that I characterise his conduct legally as amounting to recklessness, wilful blindness, “courting the risk” or negligence. Following Pattinson, the actual or attributed state of mind of contravenors is not relevant by reason of ordinary criminal law-type proportionality reasoning in relation to the seriousness of the conduct, but rather because it is relevant in relation to the extent of the need for specific deterrence.

116 Hence focussing on deterrence, as I must, it suffices to find that Mr Jones was part of a culture which allowed him, when dealing with others within Qantas, and without reproach, to engage in conduct he thought might assist in later presenting a materially incomplete and hence false narrative of his subjective motivations when the outsourcing decision was challenged. Even looked at most benignly from the perspective of Qantas, the failure of others within Qantas to respond to, and enquire further into, the motivations of Mr Jones (as more completely revealed in the “voice-over” and his comments on 1 June), and hence “allow error to creep into the process”, demonstrates a need for real change.

117 By way of completeness, despite some submissions made as to the conduct of Mr Jones in giving evidence at trial, for reasons I have explained, it would be erroneous to “punish” Qantas because his lack of candour extended to the time he gave evidence at trial.

F.5    The Impact and Consequences of the Contravening Conduct

118 In the RJ (at 170 [138]–[140]) I noted that the non-pecuniary prejudice suffered by workers being unlawfully terminated ought not to be minimised. This is because work is more than a way to make a living; it is a form of continuing participation in society. To deprive someone of work illegally is to deprive a person of an aspect of their human dignity and this is not assuaged simply by mouthing expressions of regret.

119 This is why compensation was, and is, so important, particularly when reinstatement was refused because of the significant practical difficulties such a course would have occasioned.

120 This has now been sufficiently addressed to the extent compensation is relevant to the imposition of penalty. As I have already noted, in late 2024, the parties entered an agreement by which Qantas is to pay $120 million into a Settlement Distribution Fund. Hence, after a long period of denying any obligation to pay any compensation to the affected workers, Qantas has now paid any compensation the Union considers appropriate.

121 As for the Union, although it has received its own compensation, it is common ground that as a consequence of the contravening conduct: (a) the Union had far fewer members employed by Qantas and QGS; (b) the Union was prevented from exercising a workplace right to organise and engage in industrial action and participate in bargaining in 2021; (c) Qantas was not required to (and did not) bargain with the Union for a replacement enterprise agreement covering ramp, baggage and fleet presentation; and (d) the Union has reduced influence in Qantas’ ground handling business.

F.6    Financial Benefits to Qantas

122 As a direct result of the unlawful conduct, Qantas saved approximately $125 million in the following 12 months and Qantas did not need to incur some capital expenditure (although the net savings were probably closer to $20 million, given my findings as to the counterfactual in the CJ). But at the time the outsourcing decision was made, the commercial benefits were perceived by those within Qantas as being far more extensive.

123 Indeed, well before the formality of the decision, Messrs David, Jones and Hughes all perceived the commercial benefits of the outsourcing to be “significant” and all that remained was to consider whether those benefits were outweighed by the legal and industrial risks as they had been explained to them: LJ (at 287 [123], 298–299 [156]). These perceived commercial benefits were: (a) highly significant cost savings for the ground operations on a recurring basis when things returned to normal; (b) ground operations on a fully variabilised “cost per turn” basis (which would mean Qantas would only pay when an aeroplane needed to be “turned” at an airport); and (c) obviating the need for capital expenditure of $80 million over the next five years in updated equipment such as tugs and baggage loaders: see LJ (at 288–290 [127], 298–299 [156], 302 [177]) and RJ (at 142 [28(2)]).

124 Qantas had forecast that, by the end of FY23, it would save $125 million per annum from the outsourcing (reinstatement hearing, T358.16–24).

125 On any view, when the contravening conduct occurred, the perceived financial benefit to be gained by outsourcing was enormous, even by the standards of a company the size of Qantas.

F.7    Qantas’ Circumstances

126 It is well to commence the consideration of this factor by sounding a note of caution.

127 Qantas is a unique company: it is not only Australia’s largest domestic and international airline but has represented itself as occupying iconic status and as being emblematic of the Australian nation. Qantas described itself repeatedly in the documents as embodying “the Spirit of Australia”.  Indeed, it says that it takes “the Spirit of Australia further” by its behaviour, which is to “always care and be responsible” (Ex E (at 1188)). In recent times, some officers of Qantas have apparently perceived the corporation as occupying such a position of national importance that it has injected itself into political and cultural debates by being a partisan for one side.

128 It might be thought that in the light of all this, Qantas should be held to the exceptional, indeed unique, standard it represented itself as occupying in Australia.

129 But it would be a mistake to augment a penalty otherwise payable because the contravening conduct did not align with the way in which Qantas was representing it acted or its iconic status.  Any misalignment between its unique status in Australian society or its professed “values” and the reality of the contravening could only be relevant to the extent it is material to fixing a penalty appropriate to protect the public interest in deterring future contraventions.

130 In securing deterrence it is, however, plainly necessary to have regard to the size and resources of the contravenor, its presence in a broader corporate structure, being the Qantas Group and the size, resources and financial position of that group; and the number of employees employed by Qantas as well as its subsidiaries.

131 On 12 September 2024, the Qantas Group released its full year results for the financial year ended 30 June 2024. Those results included, among other things: (a) $2.078 billion underlying profit before tax for FY24; (b) $1.884 billion statutory before tax profit for FY24; and (c) total revenue of $21.929 billion.

132 As of 30 June 2023, Qantas Domestic and International had 21,194 employees, 90% of whom were employed in Australia. Of those employees of Qantas Domestic and International, as of 30 June 2023, 87% were employed on a full-time basis and 83% were covered by an enterprise agreement.

F.8    Contrition, Corrective Action and Co-operation

133 Although these concepts are sometimes run together, they are somewhat different. While there is significant overlap, I will attempt to deal with contrition, and corrective action and co-operation separately.

I    Contrition

134 In the RJ (at 178 [159]) I observed that Qantas “sought to minimise” my liability findings and, more generally, that Qantas “exhibit[ed] a certain insouciance about them”.

135 Referring to the matters that gave rise to these observations and other, later comments made by officers of Qantas, Mr Hutley submitted that any present attempt to argue, more than four and a half years after the contravening conduct that Qantas was now contrite ought to be rejected and to not do so would, in effect, be to “brush aside” the “vehement and regular denials of wrongdoing” of Qantas and its persistent and public rejection of my findings. The conduct of Qantas, to use senior counsel’s memorable phrase, revealed “an attitude of adamantine self-righteousness”: T81.38–44.

136 When one has regard to the conduct of Qantas revealed in the evidence, this cannot be dismissed as hyperbole.

137 On 30 July 2021, I published my reasons around 10:30am (after providing a summary of my decision). Qantas was certainly not drawn to any agonising or self-reflection. The reasons consisted of 315 numbered paragraphs but less than two hours later, Qantas published a media release, which relevantly made representations attributed, for some reason, to Mr John Gissing, who was the CEO of the regional and charter business, QantasLink (who was described in the release as a “Qantas Group Executive”). Mr Gissing said:

(1)    “Qantas fundamentally disagrees with the judgment”;

(2)    the Union “put forward [a] persecution complex that our decision to save $100 million a year in the middle of a global downturn was really about stopping them from walking off the job at some time in the future”;

(3)    the focus of the Union’s case “was on a few documents that made reference to industrial action while ignoring the hundreds that don’t … a reference to the risk of industrial action risk does not automatically mean that it’s a reason for the decision”; and

(4)    “Qantas was motivated only by lawful commercial reasons, and this will be the subject of our appeal”.

138 In an article published on the day of the LJ in the Australian Financial Review, Mr Gissing also stated that Qantas’ executives “exhibited utmost honesty and integrity during the trial”. Given Mr Gissing’s role within Qantas; the evidence Qantas had adduced as to siloed decision making not involving the GMC; and Mr Gissing’s lack of involvement in the trial, how the CEO of QantasLink was able to make these evaluative judgments was not apparent. In any event, he further described the outsourcing decision as “a right decision, it was a lawful decision, and it was one we had to make quickly to secure those savings as soon as possible”.

139 Qantas then doubled down. On 17 October 2021, in an interview in the Sydney Morning Herald, Mr Joyce was asked whether he had any regrets about the outsourcing decision and responded: “Not at all. We were in the middle of the biggest crisis in our history, we had to make dramatic action for us to survive. We fundamentally disagree with the ruling, we’re going to appeal it”.

140 Consistently with this line being taken at the highest levels within the company, the Chairman, Mr Richard Goyder, was quoted in an article published on News.com.au on 18 November 2021, asserting that Qantas was only motivated by lawful commercial reasons and reiterated its “fundamental” disagreement with the Court’s decision.

141 Litigants, of course, are entitled to express disagreement, even strong disagreement, with a judgment. Courts, particularly at first instance, ought not be unduly sensitive to criticism, even when criticism is expressed forcefully by an unsuccessful party. After all, appeal courts regularly detect error. The administration of justice is not undermined by robust debate nor by the expression of dissenting views; confidence in judicial authority is secured by hearings being conducted in public and the reasoning process of the trial judge being exposed openly (and one hopes cogently) in a published judgment.

142 But it was two aspects of Qantas’ public relations narrative that are of interest in assessing the genuineness of its present submissions as to contrition: the first was the recurring theme that the Court agreed that Qantas had sound “commercial” reasons to make the outsourcing decision; and the second, was that Qantas only lost because of an onus point (as no positive adverse finding was made).

143 As to the first point, taking comfort from the fact that the Court found Qantas was motivated by “commercial” reasons overlooks the obvious reality that since man first started to engage in commercial activity, the motivation to engage in unlawful conduct in carrying out such activity can be accurately characterised as being predominantly a commercial one. Or described more bluntly, the pre-dominant motivation of unlawful commercial activity is avarice; that is, a greed directed to making or saving money.

144 As to the second, this contention, given repeated emphasis, was inaccurate given the positive finding of unlawful conduct made in relation to Mr Jones and Mr Hughes: CJ (at 231 [152]). More than once during the period between the LJ and the CJ, it was necessary to deal with the oft repeated assertion made by Qantas (in and outside Court) that this is “a case where there has been no positive finding to the effect that the impugned decision was for an unlawful purpose”. As I noted in the CJ (at 208–209 [43], [47]–[48]):

On several occasions, Qantas submitted (both in this Court and elsewhere) that no definitive conclusions were reached on the evidence and it failed at trial simply because of the application of a reverse onus in assessing the evidence of Mr David. Expressed at this level of generality, this submission is incomplete and serves to distort my fact finding and reasoning process …

…

In the LJ (at 249 [6]), I also drew attention to the fact that the outsourcing decision was not made in a vacuum and emphasised the need to assess Mr David’s evidence (as best I could) contextually and while considering the circumstances leading up to the decision. It was in this context that I turned to the influence of Mr Jones and Mr Hughes and made findings as to the subjective motivation of each of them. In all the circumstances, [this] provides a further basis for justifying my conclusion that Qantas engaged in contravening conduct.

Returning to my current task, it was necessary to remind Qantas during the compensation hearing that the findings of fact I made in the LJ as to the state of mind of Mr Jones and Mr Hughes may not have been determinative of how I went about deciding liability in the LJ, but that they could not be ignored or minimised for other purposes, including in considering the appropriate counterfactual analysis to apply in assessing the claims for compensation (T561.1–3).

145 Additionally, a further insight into Qantas’ public relations effort can be gleaned by its conduct immediately following the Full Court decision dismissing Qantas’ appeal (and the Union’s cross-appeal) at 10:15am on 4 May 2022: Qantas Airways Limited v Transport Workers’ Union of Australia. The reasons of Justices Bromberg, Rangiah and Bromwich run to 431 paragraphs. They are, with respect, carefully expressed, appropriately detailed and canvass many complex factual and legal issues. Without any time passing allowing for study of the judgment or any reflection, at 11:29am that day, Qantas determined to issue a press release reasserting that it was solely motivated by “commercial reasons” and stating it would be seeking to appeal the judgment to the High Court (and that the judgment did not mean Qantas was required to pay compensation or penalties): Ex E (at 993).

146 Then at 10:13am on 18 November 2022, an oral hearing of a special leave application successfully concluded before Gageler, Gleeson and Jagot JJ ([2022] HCATrans 205). The application for special leave had been accurately explained to the Court as being a narrow legal issue concerning “the proper scope of section 340(1)(b) of the [FWA]”. No attack whatsoever was foreshadowed (or later made) on the factual findings made at trial and left undisturbed by the Full Court. Within the hour, the following press release was issued by Qantas:

QANTAS STATEMENT ON GROUND HANDLING HIGH COURT APPEAL

We welcome the High Court’s decision to grant leave to appeal and will work towards presenting our case next year.

At its core, this case is about Qantas’ ability to legally outsource a function to save more than $100 million a year when it was struggling to remain solvent. We’ve always expressed our deep regret that our ground handlers, and thousands more across the group, had to lose their jobs as the pandemic hit us.

There was very little certainty about the pandemic and our recovery when we made this decision, and it remained that way for more than a year afterwards. We ultimately lost more than $25 billion in revenue, so it was inevitable that we had to take significant action.

The Federal Court agreed with our commercial reasons, but could not rule out that avoiding future industrial action was also a factor in the outsourcing. We have always rejected this, which is why are taking our appeal to the High Court.

(Emphasis added)

147 Although literally true, an ordinary reasonable reader would understand from this release that the Federal Court had: (a) agreed with the commercial reasons put forward by Qantas, but (b) could not rule out that avoiding future industrial action was also a factor in the outsourcing. The implicit but clear message of the second paragraph and last sentence of the press release is that these factual findings were relevant to the High Court appeal. The “core” of the High Court case was plainly not about “Qantas’ ability to legally outsource a function to save more than $100 million a year when it was struggling to remain solvent”. Further, leaving aside this spinning, this release represented another instance of Qantas failing to acknowledge the Court’s findings about the motivations of Mr Jones and Mr Hughes.

148 Even when the narrow High Court appeal was dismissed, the Chairman of Qantas was unabashed. Mr Goyder made the following remarks at Qantas’ Annual General Meeting (AGM) on 3 November 2023:

This decision was made in November 2020, when borders were closed, lockdowns were in place and no COVID vaccine existed. The likelihood of a years’ long crisis led Qantas to restructure its business to improve its ability to survive and ultimately recover.

Both the Federal and High Courts found that Qantas had legitimate and legal reasons to make this decision. But they were not satisfied there weren’t other motives that would constitute adverse action against the industrial rights of employees.

As we’ve said from the beginning, we regret that we needed to make that decision, and we deeply regret the personal impact it had on all those affected.

We’re now working through a process with the Federal Court and the Transport Workers’ Union to compensate the 1,700 employees who were retrenched.

149 These remarks, of course, contain no acknowledgement of the unlawful nature of Qantas’ conduct nor acceptance of responsibility for it. They also give rise to a further point relevant to assessing the genuineness of contrition.

150 Given the Chairman’s reference to “working through a process with the Federal Court and the [Union] to compensate the 1,700 employees who were retrenched” no doubt a shareholder present at the AGM would have assumed that compensation would be agreed at the mediation (a matter which was not within the sole control of Qantas) or an amount of compensation would be paid to the workers with the quantum to be settled upon following a court process.

151 When Ms Walsh gave her evidence-in-chief (T17.21–33) she was asked whether she understood the impact that the unlawful outsourcing had on the affected workers. She responded that it was “very clear” to her that the Qantas workforce comprised people “who are deeply connected, passionate about what they do, many people of long tenure, and I have no doubt that the people who experienced this outsourcing, who lost their jobs, that this was a significant and profound impact on them”. She went on to give evidence that she did not doubt the impact upon the workers and their families was significant, and in her “role and being able to speak for Qantas, I’m very, very sorry for what occurred to these workers who had done nothing but operate and work blamelessly for an organisation that I’m sure many of them at that time loved”.

152 At the conclusion of her time in the witness box (T41), I returned to this aspect of her evidence and the following exchange occurred:

HIS HONOUR: If I could just ask you a couple of questions?---Of course.

You joined in February 2024?---Correct.

And was reviewing what had occurred in relation to this case high on your list of priorities?---Yes.

And would it be fair to say that by 18 to 22 March 2024, that you had apprised yourself of the matters relating to this?---Yes. And the matters had concluded, if you like, through the courts and the mediation.

Now, was the view that you had, that you were very, very sorry to the workers and the impact on the employees, one that you held at that time?---It was one I held when I started in some respects, but certainly once I joined the organisation – joined Qantas and got to know many in the workforce and understood the background to this matter, that, yes, I’m very, very sorry for what happened.

I see. When you read the compensation judgment, did you see there was something referred to there by Qantas as what was described as the logical counterfactual?---I did.

And you understand that the primary case put before me at the compensation hearing was that I should accept the logical counterfactual. Would that be - - -?---I do understand that, your Honour.

And that would have meant that no compensation would have been paid all to the workers?---Yes, your Honour.

Were you aware of that as of March, at the time that you were very?---I was aware of that.

You were very, very sorry to the workers and the impacted employees, that that was the case – the primary case being advanced by Qantas at the court?---I understand that, your Honour, and I can understand the view at the time was the need to put all matters before the court for the court to determine, and the court made that appropriate determination. Hopefully you will see from the size of the compensation payment that, in fact, we are very sorry. We do wish for the workforce that was impacted to be properly remediated, and the compensation that has been agreed goes some way to deal with that.

153 I am somewhat vexed as to what to make of this testimony. Ms Walsh gave evidence in a straightforward way and seemed genuine when speaking as to her subjective feelings. But having said this, it is testament to the practical irrelevance of: (a) her personal sympathies; (b) the “deep regret” of the Chairman; and (c) the previous representation that Qantas would “work though” compensation issues, that in April 2024, Qantas latched upon an eleventh-hour forensic strategy directed to ensuring that the affected workers received nothing. This was based on an argument Qantas described as its “logical counterfactual”: CJ (at 219 [99]–[102], 230–233 [151]–[165]). If any further evidence was needed as to the unrelenting and aggressive litigation strategy adopted in this case by Qantas, it is provided by this effort directed to denying any compensation whatsoever to those in respect of whom Qantas was publicly professing regret for their misfortune (and, in respect of whom, Ms Walsh was feeling “very, very sorry”: T41.23).

154 In the light of all this context, it is unsurprising that the Union submits, in effect, that the Court is being presented with mere pieties. If so, such performative remorse would be no true reckoning; but theatre staged for the audience of both the Court and public opinion, hoping the curtain will fall on this saga with the financial damage minimised.

155 Qantas submits that there are a number of aspects of contrition in the present case: first, evidence of what the contravenor has done for those who suffered from its wrong to make the situation right; secondly, statements made by the contravenor to those affected by its wrongdoing; thirdly, statements made to the public and to the Court apologising for its wrongdoing; fourthly, evidence that the contravenor has set up appropriate systems, processes, procedures or education; and fifthly, evidence that the contravenor intends to change its ways.

156 The evidence directed to the first four of these aspects is relatively straightforward.

157 Documents are in evidence recording representations that have been made going to expressions of “deep regret” and the apologies made (leaving aside for a moment the issue as to whether these amount to a strategic posture designed to staunch adverse consequences).

158 The sum of compensation sought by the Union has been duly paid. It is an objective fact that the Qantas Board commissioned the “Qantas Governance Review Report” (QGRR), which recommended changes to Qantas’ ways of working. It will be necessary to examine aspects of this report in further detail below, but it is said by Qantas to show it “interrogating its decision-making processes and putting into place procedures to minimise the risk of Qantas again making a decision that is unlawful”; and the evidence demonstrates the implementation of its central recommendations.

159 Further, the Qantas Board reduced the discretionary bonuses for Messrs Joyce, David and Finch, who were each informed that they received lower remuneration outcomes “following consideration by the Board of the events which had a material impact on the business and reputation of Qantas in 2023” including, but not limited to, the outsourcing decision.

160 Additionally, Qantas reintroduced a role directed specifically to “build[ing] better relationships between senior management and Qantas employees”. Consistently with prevailing human resources jargon, this was a position labelled: “Group Chief People Officer”.

161 Subsequent to the appointment of Ms Walsh, albeit relatively shorty before this hearing, training has been provided to relevant individuals within Qantas explaining the judgments, the general protections set out in the FWA, and providing practical examples of conduct which violates those general protections, and how to avoid violating those general protections when making decisions on behalf of the company.

162 I accept that since 2023 Qantas has, to a limited extent, been prepared to hold those in senior management responsible for their actions. Having noted this, it is not unduly stretching the bounds of s 144 of the Evidence Act to remark upon the obvious fact that those executives had been handsomely remunerated in the past and the Board response only came after significant adverse publicity and, I would infer, a recognition of public and shareholder disquiet as to a range of issues concerning Qantas.

163 I also accept that this and the other post-High Court judgment actions referred to above are significant considerations in determining the appropriate penalty to achieve specific deterrence. But assessing the extent these measures have and will, in truth, change the culture at Qantas and reduce the risk of Qantas contravening the general protections provisions in the FWA, is more difficult.

164 This brings into focus the fifth and, to my mind, most important of the aspects of contrition referred to at [155] above. Does Qantas really intend to change its ways?

165 Put another way, the real question becomes whether, on the evidence adduced at this penalty hearing, Qantas has proved that those presently guiding its affairs are, on its behalf, genuinely contrite and committed to change. This requires proof of a state of mind to be attributed to the entity. This is a fact to be proved like any other fact and, as I noted by reference to longstanding authority in the LJ (at 324–325 [284]), when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found and a party bearing the onus will not succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue. Put another way, the fact proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

166 I will come to the evidence that was adduced at the penalty hearing shortly, but what is noteworthy is the evidence not adduced.

167 It seemed to me obvious that the person who could give the most direct and compelling evidence of corporate change and contrition was the present CEO, Ms Vanessa Hudson. Ms Hudson was, after all, uniquely placed to assist the Court in this regard. She is a very longstanding employee of Qantas. During the period leading up to the contravening conduct, Ms Hudson was Group Chief Financial Officer of Qantas and a member of its GMC. She was referred to by Ms Walsh as the person who wanted relevant change in industrial relations (T16.15).

168 As I noted in the LJ (at 253 [22]), the GMC was comprised of the leading executives within the business and was described as an “executive decision making forum”, was said to set “the broad strategic goals and parameters for the entire Qantas Group” and was the forum to provide feedback on risks and opportunities arising from proposals being considered for implementation, including the outsourcing proposal. It will be recalled that at the GMC meeting on 29 May, attended by Mr David and Mr Jones, Mr Jones made an oral representation to the effect that the option of outsourcing was “superior” given the “open EBA 2020 DEC” (LJ (at 281–2 [103]–[104], 283 [111])). Indeed, Mr Jones “attend[ed] a number of relevant meetings and actively participated” (LJ (at 273 [71])).

169 In the LJ (at 303 [183]), I rejected the submission made by the Union that the GMC made the outsourcing decision. Having said that, as the LJ sets out in detail, it had a central role during this period, including in the discussion of legal and industrial relations risks (for example, see LJ (at 296 [145])). As a former member of the GMC who is now responsible for implementing reform, Ms Hudson was clearly in a position to explain why she thought things went wrong, how she formed the view she wanted change in the industrial relations area and what she has done personally to ensure, in the light of her accumulated knowledge and experience, that contravening conduct does not occur in the future.

170 It was asserted by Qantas that the intention of the new leadership and accountability is to: (a) learn from this mistake; (b) move on from it by fostering and implementing cultural change; and (c) change tack by taking responsibility for what happened. But whatever this new leadership and accountability means in concrete terms, it did not extend to Ms Hudson taking the step of entering the witness box and explaining, on oath, what she had learned from being involved as part of the senior management of Qantas when the outsourcing decision was made, any regrets she may have, and what, if anything, she now would have done differently when the outsourcing proposal (to use Qantas’ expression) was “socialised” with her and other members of the GMC.

171 Following the delivery of the CJ, Ms Hudson was recorded, in a document entitled “Qantas Statement on Ground Handling Compensation Judgment” as saying:

We sincerely apologise to our former employees who were impacted by this decision and we know that the onus is on Qantas to learn from this …

We recognise the emotional and financial impact this has had on these people and their families. We hope that this provides closure to those who have been affected.

172 The statement also referred to the fact the “test cases” would be used as the basis to determine the individual compensation payments for each eligible individual and that Qantas has sought the assistance of the Union to find a way “to speed up the compensation and a mediation process will now commence”. She also sent an email to the affected workers notifying them about the CJ and saying:

I recognise and apologise for the emotional and financial impact this decision may have had on you and your families. I hope that through this compensation we can provide closure to those who have been impacted.

The onus is on Qantas to learn from this and do better as we continue to rebuild the trust and confidence of our people and wider community.

We’ll work as quickly as we can to finalise the compensation amounts. Qantas has sought the assistance of the [Union] in order to find a way to speed up the compensation process.

I understand there will be a number of questions you will have regarding your compensation, including how much money you are entitled to and when you will receive it. We intend to work with the [Union] to get those answers to you as soon as possible. Your past contribution to our business is highly valued and we will keep you updated as things progress ...

173 Evidence given by Ms Hudson would likely have assisted in assessing the genuineness of these post-CJ expressions of contrition. It strikes me that if one has regard to all the circumstances following the dismissal of the High Court appeal and the departure of Mr Joyce in September 2023, some affected workers might well have thought this apology and recognition that compensation “would provide closure” might sound somewhat hollow.

174 It should be recalled that on 14 September 2023, immediately following the High Court judgment, my Associate wrote to the parties concerning my proposal to make an order, at the case management hearing the following week, for the compensatory claims to be referred to mediation before the Honourable J L B Allsop AC, the former Chief Justice of this Court and asking the parties to obtain “instructions as to the identity of persons proposed by the parties to attend the proposed mediation and their availability within the time contemplated for the conduct of the mediation (so if the order is made, a date and time can be fixed)”. Qantas agreed to the proposed order for mediation but instructed its counsel to submit that the in-house solicitor closely involved in the preparation of documents relating to the outsourcing decision and whose credit was in issue at the liability hearing, Mr Finch, represent Qantas at the mediation and that Ms Hudson, the then new CEO, not be required to attend (T10.29–32). Over that opposition, an order was made that Ms Hudson attend.

175 The mediation failed and then came some further changes within the organisation, such as the arrival of Ms Walsh at the beginning of 2024 and the commissioning of the QGRR in October 2023. These sorts of changes are relied upon by Qantas to submit that little weight should be given to various statements made to the media by persons “no longer with Qantas” as they do not now reflect the new, changed culture at Qantas.

176 But despite all this, the culture at Qantas in April 2024 was such, that as I explained in Transport Workers’ Union of Australia v Qantas Airways Limited (Order to Recall Witnesses) [2024] FCA 572, shortly before the compensation hearing, and over the objection of the Union, Qantas raised for the first time an argument directed at denying any compensation to any affected worker. This was never explained other than by Ms Walsh saying, “the view at the time was the need to put all matters before the court for the court to determine”: T41.41–43. But if there was real contrition and cultural change in April 2024 and Qantas was genuine about its “deep regret” and thinking and hoping compensation “can provide closure”, it strikes me as curious that Qantas decided, just before the hearing, to develop this argument, which would have served to prevent such “closure”. What changed about the importance of paying compensation to provide “closure” to workers post-April 2024 save for the fact that Qantas’ new argument was rejected?

177 Qantas did not have to instruct its lawyers at the compensation hearing to take such a course under its new post-2023 leadership, which is said by Qantas to embrace profound cultural change.

178 Returning to the evidence at this hearing, Qantas was represented by a formidable legal team: I infer the decision of Qantas not to call Ms Hudson was an informed and deliberate one. Of course, a consequence of this forensic decision was the absence of questioning by senior counsel for the Union as to the extent of her knowledge and involvement (as one of the members of the GMC) leading up to the outsourcing decision and other matters said to be relevant as to how Qantas has changed. It is one thing for the “Qantas News Room” to issue press releases by a CEO saying sorry; it is quite another for written assertions of contrition, recognition of wrong and cultural change to be tested in a Court room by senior counsel for a party submitting that Qantas is engaged in performative remorse.

179 Turning to the evidence eventually adduced, a further notable aspect of this hearing was that initially Qantas elected to foreshadow that it was not adducing any testimonial evidence going to contrition (as that concept is properly understood). An initial outline of evidence from Ms Walsh contained no expression of contrition. After I observed at the case management hearing on 20 March 2025 that I had seen no proposed testimonial evidence of contrition, Qantas, as the Union submits, “belatedly and after defaulting (without explanation) on orders to file any further evidence by 11 April 2025” finally served “an updated outline from Ms Walsh on Good Friday which purports to express regret”.

180 It is passing strange that expressing contrition on oath or affirmation, was apparently not thought to be of relevance or importance to Qantas until prompting.

181 Having made these observations, some evidence going to contrition (including on affirmation), was adduced and I must, as explained in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (at 412–413 [165]–[167] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), ensure I direct myself to decide any disputed question, such as the extent of Qantas’ contrition, not according to speculation about what other evidence might possibly have been led but rather the evidence adduced. Further, I propose to treat the absence of any testimonial evidence at this hearing other than from someone not there when the contravening conduct took place as going to the question of the cogency and persuasiveness of the evidence adduced and it is unnecessary to proceed to draw an adverse inference from others (such as Ms Hudson) not giving evidence.

182 Going back to the issue as to whether Qantas is truly contrite, I have hesitation in reaching a conclusion. Its conduct of the case and its public comments throughout the case gives reason for pause. Moreover, as the chronology indicates, Ms Walsh was only belatedly given the task of expressing contrition for events that occurred before she embarked upon her current role.

183 I accept that Ms Walsh is a sincere and competent professional who will do her personal best to prevent a reoccurrence of contravening conduct. I deal with aspects of her evidence elsewhere including the important fact that as the person responsible for industrial relations, she now reports directly to the CEO. But given the extent of the cultural problem revealed by this case, I would have been much more persuaded of the genuineness of contrition if her evidence had been supplemented by a member of senior management who was present when the proposal was “socialised” and evaluated, and who explained why things went so wrong, how they have been converted to new ways of doing things, and how lessons have been learnt.

184 Time will only tell whether the undoubted good intentions of Ms Walsh will prevail. The scope of the task ought not to be underestimated. The strategy adopted by Qantas at the compensation hearing was not reflective of regret and rather suggested an industrial relations culture that has very deep roots, despite high level representations of change following the departure of some key personnel in 2023. To the extent that one can try to attribute a state of mind to an organisation, although the involvement of Ms Walsh and other developments noted below are positive signs, any changes have only occurred after the full extent of the problems caused by this case (and other controversies) have become public and noteworthy.

185 In conclusion, it goes too far to conclude Qantas is now simply like Tartuffe; pleading virtue only when cornered and feigning contrition while harbouring no genuine regret. I do think persons of responsibility within Qantas do now have some genuine regrets, but this more likely reflects the damage this case has done to the company rather than either: (a) remorse for the damage done to the affected workers; or (b) concern it engaged in the contravening conduct (a finding it resisted until it could resist no more and has, on multiple occasions prior to this hearing, sought to explain away as representing no moral or ethical failure).

II    Corrective Action and Co-operation

186 It is here that one does see some indications of change.

187 As already touched upon above, in October 2023, the Qantas Board commissioned a review that culminated in the QGRR, which recommended changes to Qantas’ ways of working. Ms Walsh explained that Qantas has committed to implementing the recommendations in the QGRR and that Qantas has already implemented many recommendations.

188 A review of this report released in 2024 demonstrates that its author, an “experienced business adviser” Mr Tom Saar, was satisfied it was produced following a “robust” process and believed Qantas has “an openness to feedback and reflection, and a commitment to achieve market or industry-leading practices in governance, culture and ‘ways of working’” (Ex E (at 1126)).

189 Having noted this, it is worth remarking that in the “[k]ey recommendations and Qantas’ response” section of the QGRR, listed as one of ten “[k]ey events or root causes” that led to “a loss of trust amongst stakeholders [sic] in the 12 months prior to October 2023”, was Qantas “losing its appeal to the High Court against earlier Court determinations that Qantas’ outsourcing of ground handling services involving approximately 1,700 redundancies was unlawful”. It is then reported (Ex E (at 1127)):

Based on the perspectives of individual Board members and Management interviewed as part of the Governance Review, Mr Saar distilled the following root cause dynamic that underpinned these actions and events:

1.    Culture - Qantas’ strong safety culture was not representative of the leadership culture of the Group as a whole, which contributed at times to a focus on financial performance before stakeholders and nonfinancial risks (other than safety);

2.     Leadership style - top-down leadership with a dominant and trusted CEO, leading to insufficient listening and low speak up;

3.     Corporate governance - the Board’s mode of engagement with management did not always achieve the right balance between support and challenge;

4.     COVID impact - managing the COVID crisis both during the pandemic and when reopening required decisive action but the potential cumulative impacts on the company and its stakeholders were not always fully appreciated; and

5.     External communications - external communications were at times combative which exacerbated issues.

These are reflected in the findings summarised below in this Report.

190 It is far from clear to me that these identified aspects of the so-called “root cause dynamic” were the cause, or at least the most proximate cause, of the contravening conduct in this case. Perhaps understandably given its breath, it does not descend into any detail about how and why the contravening conduct occurred and the words “outsourcing” or “unlawful” do not appear in the document again.

191 Three or so of the ten enumerated “Improvement Themes” identified by Mr Saar might have some relevance in combatting the aggressive industrial relations and litigation culture evident in the making and later defending of the outsourcing decision, although they are expressed in such a Delphic way that it makes it somewhat difficult to tell (for example, “[c]oalesce around agreed Board and Management interaction norms (focused on sharing and collaboration, accountability and challenge, respect and support)” or “[c]ommit to more formal feedback mechanisms and development cycles covering skills and behaviours for both the Group Leadership Team and Board effectiveness” (Ex E (at 1126))).

192 Having said this, the QGRR is not a superficial document and does provide some evidence of Qantas interrogating its general decision-making processes and committing to change and renewal.

193 Apart from the re-introduction of the role of Ms Walsh, there has also been significant change in personnel. As we have seen, the CEO has changed, as has the Chairman. As for the directors, Mr Paul Rayner, Ms Barbara Ward, Ms Maxine Brenner, Ms Jacqueline Hey, Mr Michael L’Estrange and Mr Todd Sampson have all left. Further, other actors within Qantas at the relevant time (for example, Mr David, Mr Nicholas, Mr Gissing, Ms Millen and Mr Finch) have gone.

194 As noted above, Qantas has also introduced some training providing an overview of the judgments, the general protections set out in the FWA, practical examples of conduct which violates those general protections, and how to avoid contravening conduct when making decisions on behalf of the company. This training is a welcome initiative, but it must be borne in mind that the contravening conduct did not arise because of a want of detailed legal and practical assistance as to the requirements of the FWA. It had deeper and different causes.

195 I accept that among the post-2023 management there is a desire for Qantas to be perceived as having changed, and for some generalised cultural change to occur. When it comes to industrial relations, Ms Walsh gave evidence of her “industrial relations function”, and how Mr Nathan Safe manages approximately 30 people in the industrial relations group (Mr Safe was a Qantas employee at the time of the contravening conduct and it is unclear on the evidence how many of his team are new). Significantly, however, Ms Walsh is a member of the successor forum of the GMC, the Group Leadership Team, and her direct reporting is to the CEO, and not to the General Counsel (that is, the successor of Mr Finch). These are not insignificant changes, and I am confident Ms Walsh has thought about how to foster cultural change. But when one looks at specifics, the Union understandably points to the ongoing involvement of those consulting with and advising Qantas during the period it engaged in contravening conduct in continuing to provide industrial advice.

196 If one returns to how “the issues in such cases should be considered in advance, and how litigation should be prepared for and run”, it is suboptimal a directed investigation has not taken place as to how the cultural approach to industrial relations (revealed graphically by the tone and content of the waived materials) arose, how it contributed to the proposed outsourcing decision being “socialised” with the GMC the way it was, and how the proposal came to be evaluated by persons who held the prohibited reason thus infecting the process. In this regard, part of the cross-examination of Ms Walsh (T33.34–38) in relation to the waived materials (and directed to whether she has raised issues with third party contractors of Qantas who were present on 1 June) is illustrative:

Have you asked them how they sat in a meeting when Mr Jones put forward what was obviously an illicit reason for this outsourcing without raising it as a question for consideration by Qantas?---I’ve not asked that question directly, no.

Why not?---It is not a question that I felt I needed to ask them.

197 This ought not be taken out of context as Ms Walsh’s role does represent some reform, but the lack of directed enquiry or investigation to get to the bottom of how the contravening conduct occurred does not evince a real departure or shift from the longstanding attitude of Qantas that the “commercial” decision was made in the midst of an existential crisis, and there was no real failure or lapse worth commenting upon. The relevant “key event” or “root cause” that led to “a loss of trust” identified in the QGRR was Qantas “losing its appeal to the High Court” (see [189] above) – not the underlying culture which led to the specific outsourcing decision being made in the way it was made in the first place.

198 As to co-operation, this has limited present relevance given the contested nature of the proceeding. The litigation was very hard fought. Indeed, in the RJ (at 173 [150]), I remarked upon how the parties were at loggerheads. As expected, the Union conducted its own aggressive public relations campaign, which was not always accurate (starting with the assertion that this was somehow a “test case” about the industrial phenomenon of “outsourcing”); it is unrealistic to expect Qantas to be passive in the light of some statements of the Union that required correction. Further, Qantas did assist in constructively agreeing facts at this, and earlier, hearings; moreover, there were aspects of the Union’s case which were misconceived and merited a spirited defence. Qantas successfully defended all but one of the several contraventions that the Union alleged it had contravened (see LJ (at 316–319 [241]–[258], 330–331 [306]–[310])); it was successful in resisting a global reinstatement, and the Union’s overly ambitious counterfactual at the compensation hearing was rejected: see CJ (at 217–219 [89]–[98]).

F.9    Past Contraventions

199 Qantas has contravened industrial law on two previous occasions. First, in Australian Licenced Aircraft Engineers Association v Qantas Airways Limited (No 2) [2013] FCCA 1696, where Qantas was held to have contravened s 280 of the FWA by flouting a workplace determination. A penalty of $41,250 was imposed for this contravention. Secondly, in Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [2012] FMCA 711, Qantas was held to have contravened s 340(1)(a)(ii) of the FWA. In this case, Qantas had taken unlawful adverse action against its employee because he had exercised a workplace right. A penalty of $13,200 was imposed. Qantas accepts that these two instances are relevant to the assessment of penalty in this case, but submits that they should be afforded little weight because they concern events that occurred long ago.

200 In Australian Competition and Consumer Commission v Qantas Airways Limited [2024] FCA 1219, Rofe J ordered Qantas to pay penalties of $100 million for misleading 86,597 members of the public by selling bookings on cancelled flights and for misleading 883,977 members of the public by not notifying flight cancellations promptly. The size of this penalty was affected by the fact that Qantas also gave a court-enforceable undertaking to the Australian Competition and Consumer Commission to pay $20 million as “cancellation compensation” to the members of the public who were misled. The wrongful conduct involved contraventions of the Australian Consumer Law prohibiting misleading or deceptive conduct; and false or misleading representations: see ss 18(1), 29(1)(b), 29(1)(g) and 34 of the Competition and Consumer Act 2010 (Cth).

201 Further, in SafeWork NSW v Qantas Ground Services (No 4) [2024] NSWDC 53, QGS was penalised $250,000 for contravening s 104(1) of the Work Health and Safety Act 2011 (NSW). That provision is an analogue to ss 340 and 346 of the FWA and proscribes “discriminatory conduct for a prohibited reason”. QGS had engaged in discriminatory conduct by altering the position of a health and safety representative to his detriment by standing him down because he had exercised a power or performed a function as a health and safety representative.

202 I refer to these later events notwithstanding that Qantas contends that only past contraventions of norms of industrial behaviour of a like character to s 340(1)(b) of the FWA are relevant. I am unable to accept this submission if it is supposed to embody a principle of general application. Although what is relevant is what is necessary to secure deterrence of contraventions like those with which we are concerned, as a matter of logic, this may well be affected by a culture that has allowed a history of breaking laws of a different character. But for present purposes, the relevant contravening conduct was of a singular scale and character. Qantas is not a persistent flouter of industrial laws and, after recognising this reality, the amount necessary to secure specific and general deterrence is not affected one way or another by other instances where Qantas has been found to have acted contrary to the law.

F.10    Adverse Publicity

203 Qantas has received significant adverse publicity as to the unlawfulness of the conduct. Although the Union contends this not relevant, this submission cannot be accepted. The experience of the public criticism that Qantas has received is something that has obviously spurred the need to take some steps towards change and to present to the public that the culture within Qantas has changed. The experience of adverse publicity (and the obvious desire to avoid receiving more in the future) is a factor in favour of Qantas when it comes to specific deterrence.

F.11    Clarification of the Law

204 The litigation has clarified that it is unlawful to take adverse action to prevent the exercise of a workplace right, even if that right is not held at the time the action is taken. The Union submits this matter is not relevant.

205 Although it might have some marginal relevance, it is hard to see it being of any significance. The argument ultimately raised for consideration by the High Court (and resolved by that Court) as to the legality of the actions of Qantas was not canvassed in any contemporaneous material and there is no evidence it played any part in motivating the outsourcing decision. An honest but mistaken understanding of the law concerning future workplace rights did not inform the contravening conduct (which would be very relevant to specific deterrence). The whole point was ensuring that the contemporaneous documents created a record which demonstrated that no consideration was given to preventing the exercise of any right whatsoever, irrespective as to whether it had crystallised.

206 Indeed, the point that ultimately was the subject of a grant of special leave was not run in the same way at trial but rather emerged during the appellate process. Although the High Court decision has meant there is now further certainty in the law, it was not suggested, until the novel and interesting point was raised, that there was any relevant uncertainty held by anyone as to the state of the law.

G CONSIDERATION OF QUANTUM OF PENALTY

207 The synthesis of the relevant factors should commence by reminding myself of the principles explained in Section B above. Most fundamentally, the purpose of the penalty to be imposed is the promotion of the public interest in compliance with the provisions of the FWA by the deterrence of further contraventions; retribution, denunciation and rehabilitation are to be put to one side.

208 Although the order of factors addressed below is not meant to indicate a hierarchy of importance, as to the factors which I consider to be the most significant in achieving specific and general deterrence, in drawing the threads together, it is well to deal first, with the general topic of culture and contrition.

209 As my findings indicate, the issues broadly described as contrition and culture (including the findings relating to the disparity issue) create a picture that is, at best, mixed.

210 I accept Qantas is sorry, but I am unconvinced that this measure of regret is not, at least in significant measure, a result of what the Full Court (Besanko, Wigney and Bromwich JJ) described as “the wrong kind of sorry”: see Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 (at 147 [167]).

211 This conclusion is not only a result of caution caused by the apparently deep-seated nature of the combative industrial relations culture within Qantas evident from the fact that Mr Jones had the state of mind he did, the content of the waived materials, and includes the public statements disputing and not accurately recounting the findings of the Court. Added to this is the less than compelling evidence of contrition (which did not include evidence of anyone present at the time of the contravening conduct who could attest, by way of first hand observation, as to the change in the culture), and the approach to compensation generally (which, as I have explained was agreed and paid after Qantas had initially sought to deny any compensation).

212 Further, although I accept the new role and reporting lines of Ms Walsh are important; that she is relevantly skilled and has good intentions; that remuneration of some ex-Qantas employees has been affected; that reviews have been completed and substantially implemented; and that the not insignificant personnel changes have been made, there remains a lack of cogent evidence of any detailed investigation of the underlying cause of why things went wrong with the specific outsourcing decision and, connected to this, the disparity issue.

213 Despite every effort being made by Qantas to select and insulate the putative decision maker; despite the efforts to ensure business records prevented any discoverable document being created which would undermine the narrative that its three imperatives were the sole motivation for outsourcing; despite engaging specialist lawyers at every stage of the process including having the solicitors and a barrister settle what was wrongly said to be a routine financial delegation document to reinforce the insulation of the CEO; despite the elaborate IHB process which, in truth, was never going to be successful; despite the inaccurate or incomplete public communications both before and after trial; and despite the incompleteness and lack of candour in the narrative presented by Qantas to the Court, sufficient aspects of the truth eventually outed.

214 But what is concerning for effective deterrence is that the result was not a foregone conclusion. It was only after the disclosure of the waived material, that the correctness of the finding that those assisting Mr David held the prohibited reason became self-evident. The finding was made at the liability hearing only because of standard discovery which revealed, among other things, the “voice-over” document (a crack which let the light in) and because of a carefully prepared and thorough cross-examination.

215 As I noted in the introduction, Qantas accepts that it allowed the process to become too focussed on protecting any decision from a legal challenge, that the affidavits and other evidence at the liability trial did not present the reality in some respects, and “the question of conduct of the case is relevant”; it further submits the case has already been a “wakeup call for corporate Australia” including in how the issues in such cases should be considered in advance, and “how litigation should be prepared for and run”.

216 But how has this asserted recognition translated into action?

217 Giving full weight to the reality that there was (and is) no finding that Qantas engaged in deliberately improper conduct, at the risk of repetition, there is no evidence anyone within Qantas investigated how the process was able to become too focussed on protecting this decision from a legal challenge and why it was that a less than candid picture of what happened was placed before the Court. I have already extracted (at [49] above) when this last issue was raised with Ms Walsh. It was evident from the giving of her evidence that despite reading the LJ and the CJ, it had not occurred to her, as the person put forward by Qantas to provide evidence of “cultural change”, to investigate how this disparity had occurred or otherwise consider it.

218 The need for specific deterrence to ensure change does take place and takes root at Qantas is highly significant. The demands of general deterrence to other corporations (particularly large publicly listed corporations) is also centrally important and a penalty must reflect the public interest in ensuring, as Qantas submitted, that this case is, in truth, a real deterrent: a “wakeup” call on what the law is; on how the issues in such cases should be considered in advance, and how litigation should be prepared for and run.

219 Secondly, a factor of even more obvious importance, pointing to the necessity of deterring similar conduct, is the sheer scale of the contraventions; being the largest contraventions of their type, and the consequence it had for 1,820 affected workers (who were then denied compensation for a long period by reason of the subsequent conduct of Qantas).

220 Thirdly, a further factor pointing significantly in the direction of a penalty near the maximum is the extent of the financial advantage that Qantas sought to achieve by the contravening conduct. The anticipated savings were more than the quantum of the maximum penalty in the first year and were thought to be ongoing, and the penalty cannot be perceived as being anything like just a cost of doing business.

221 Fourthly, and related to the size of the anticipated benefit, is the size and financial standing of the contravenor. A very large penalty must be imposed as the imposition of a pecuniary penalty must involve a financial disincentive which encourages compliance with the law “by ensuring that contraventions are viewed by the contravenor and others as an economically irrational choice”: Pattinson (at 475 [66]).

222 Fifthly, and connected to the size of Qantas, is that in the RJ (at 173–174 [152]) I referred to the concern expressed by the Union that Qantas would (and be perceived to have) “gotten away” with something if there was no reinstatement. But as I then noted, any order made pursuant to s 545 of the FWA must be remedial, compensatory or preventative (see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 (at 193 [110] per Keane, Nettle and Gordon JJ)). By way of contrast, my present focus is on achieving real deterrence (including general deterrence to large public companies which might be tempted to “get away” with contravening conduct because the rewards may outweigh the downside risk of effective remedial responses, including eventual penalties).

223 Sixthly, the outsourcing decision was evaluated, recommended and made by senior management. It was not the work of a junior employee and, moreover, as I have explained, one of those involved deliberately avoided recording an aspect of his evaluation of the benefits of outsourcing. He knew this stratagem would present an incomplete picture in an important contemporaneous document when any outsourcing decision was challenged. This is redolent of a corporate culture that needs to change and needs further incentive to change.

224 Although I have mentioned some factors by way of emphasis in this section of the reasons, this does not mean that I have not considered all the relevant considerations identified in Section C and the findings in Section F: I have, and all the considerations identified as relevant have been borne in mind. This includes: (a) the unique circumstances of the contravention during an existential crisis for the airline industry when Qantas faced a business calamity; (b) that any deficiencies in the evidence of contrition or remorse do not “aggravate” penalty; (c) the fact a contravenor defended a proceeding should not result in the penalty being increased; (d) although the financial gain was initially perceived to be much larger, the net financial gain was probably around $20 million (given my findings in the CJ) and Qantas has subsequently been ordered or agreed to pay compensation in excess of $120 million; (e) it has suffered significant adverse publicity; and (f) there has been at least some, albeit very general steps taken to improve the broad “compliance culture” of Qantas accompanied by post-2023 changes in personnel.

225 The factors just mentioned do mean the imposition of the maximum penalty is not necessary to achieve specific deterrence, and when considering general deterrence, I have reminded myself of what was said by the Full Court in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 (at 62 [152] per Jagot, Yates and Bromwich JJ):

If it costs more to obey the law than to breach it, a failure to sanction contraventions adequately de facto punishes all who do the right thing. It is therefore important that those who do comply see that those who do not are dealt with appropriately. This is, in a sense, the other side of deterrence, being a dimension of the general deterrence equation. This is not to give licence to impose a disproportionate or oppressive penalty, which cannot be done, but rather to recognise that proportionality of penalty is measured in the wider context of the demands of effective deterrence and encouraging the corresponding virtue of voluntary compliance.

(The emphasis added above reflects that given when this passage was quoted with approval in Pattinson (at 468 [41]))

226 In the end, a court imposing a pecuniary penalty is engaged in setting a “price on contravention”:  The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (at 506 [55] per French CJ, Kiefel, Nettle, and Gordon JJ quoting French J in Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 (at 52,152)).

227 The price on contravention given all the circumstances must be very large, but it must reflect my assessment of what is truly necessary to achieve the object of deterrence. Further, the process must result in a penalty that bears some reasonable relationship with the maximum of $121,212,000.

228 Taking all relevant factors into account, a penalty of no less than $90 million appears necessary to achieve the objects of deterrence (slightly less than 75% of the maximum penalty).

229 For the sake of completeness, I should note that even if I had not taken into account my findings as to the disparity issue (as it relates to the culture of Qantas) and/or made the additional finding based upon a characterisation of earlier findings in relation to Mr Jones (see [116] and [221] above), the sheer scope and size, perceived financial benefits, and consequences of the contravention require a minimum penalty of $90 million. Any less would not achieve the necessary specific and general deterrence.

230 In deciding it is “appropriate” (as that term is used in s 546(1) of the FWA) to impose such a penalty, I have reminded myself that this contravention was a single decision, and the maximum penalty is only what it is because the outsourcing decision was directed to 1,820 affected workers. I have also satisfied myself that the penalty of $90 million does not involve any notion of “double punishment” and, standing back as a final check, it bears a proper relationship to the overall conduct having regard to all the relevant circumstances and the object for which the penalty is imposed.

H RECIPIENT OF PENALTY  

231 The issue then arises as to whom the penalty should be paid in whole or in part.

H.1    The Activity of the Union

232 In support of the submission it should receive the penalty, the Union placed material before the Court, which establishes that it has incurred:

(1)    a total of $4,096,631.42 (incl GST) in legal costs and disbursements because of the outsourcing decision and subsequent proceedings; and

(2)    significant costs by reason of the work undertaken by Union officials relating to the outsourcing and subsequent legal proceedings, with the estimated value of $2,802,716.53.

233 Further, between 25 August 2020, when Qantas announced a proposal to outsource ground handling work, and 30 November 2020, when Qantas announced the outsourcing decision, Union organisers, Union legal and industrial officers and other Union officials undertook a great deal of work in meeting and communicating with members about the proposed outsourcing, and developed media, campaign and internal communications strategies. Then, following the commencement of litigation, and during all the proceedings, legal and industrial officers and other Union officials attended all hearings and mediation sessions, instructed the solicitors and liaised continually with members and other affected workers.

234 Further, since 17 December 2024 and on an ongoing basis, Union organisers, Union legal and industrial officers and other Union officials have been required and will continue to be required until the end of the settlement administration process to undertake a variety of tasks associated with the progress of the settlement administration scheme.

235 There is also material that establishes that because of the expenditure on this dispute, and the allocation of resources to it, the Union has not been able to fund other campaigns and litigation, for example, in road transport; waste management; private buses; and the aviation industry. In this last respect, but for the drain of the resources of the Union, funds would have been directed to campaigns for cabin crew, pilots, and other aviation workers, such as those employed by Swissport.

H.2    Proposed Use of Any Amount Paid to the Union

236 The Union has also provided material to the Court to explain how it intends to use any of the pecuniary penalty paid to it (relevant funds).

237 The relevant funds would first be used to defray the Union’s past and projected future costs in conducting these proceedings (together with the appeals to the Full Court and to the High Court), in the IHB process, and in servicing and assisting the affected workers following the proposal to outsource and then the outsourcing decision and its implementation.

238 The Union then says that the balance of any relevant funds would be used to advance the workplace rights, pay, conditions, wellbeing and welfare of transport workers consistently with the rules of the Union and in accordance with the obligations imposed on it and its officers by the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act). In this regard, Pt 2 of the Rules of the Transport Workers’ Union of Australia (Rules), sets out the “general objects of the Union” including: (a) “to promote, foster and maintain the best industrial interests of all Members”; (b) “to secure for Members improved conditions of employment”; (c) “to afford assistance in cases of industrial oppression”; and (d) “to seek to improve the status, training and educational qualifications of Members”.

239 According to the Union, the use of the relevant funds in this way would likely include: “test cases or other significant litigation” which affects a large cohort of members or has wider significance for workers the Union is eligible to represent; industry-wide campaigns for the employment and industrial interests of members; legislative reform campaigns; campaigns which require large-scale public engagement to achieve systemic change or improved conditions for a large number of members; and campaigns which target particular industries or industry practices.

240 The ultimate governing body of the Union is its National Council; its members are elected ultimately by members and decisions in relation to expenditure of all funds are ultimately subject to the control of members by the National Council.

241 At present, the material before the Court establishes that the Union is particularly focused on employment conditions in the aviation and road transport industries. Additionally, the Union is said to be focused on achieving greater protections and entitlements for many workers in the “gig” economy, who are perceived by those controlling the Union to lack basic workplace rights such as job security, minimum work entitlements and protections from unfair dismissal.

H.3    A Summary of the Union’s Submissions

242 The leading case on the construction and application of s 546(3) of the FWA is the decision of the Full Court (Tracey, Barker and Katzmann JJ) in Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; (2016) 239 FCR 336 (on appeal from
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338).

243 Mr Sayed had brought an action against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for several contraventions of the FWA and was largely successful before the trial judge. This led to an order of compensation for lost income and distress and humiliation, as well as penalties in the sum of $45,000.

244 The primary judge observed that the proposition both compensation and penalties might be ordered by the Court in the same case was “straightforward”, but the proposition that they might both be ordered to be paid to the same person was “more complex” (at [80]). The complexity arose from the legislative preference pursuant to s 570 of the FWA that each party is to bear their own costs. The issue arose: if a party has already been compensated, should they then receive anything further and would the receipt of what amounts to a “windfall” be inconsistent with the apparent legislative intention.

245 Her Honour concluded that it was not appropriate to award the penalties to the compensated Mr Sayed as he would receive more in real terms from the payment of the penalty than he had received by way of compensation (at [93]); and to proceed otherwise would not only undermine the policy behind s 570, but be in tension with the legislative requirement that a person claiming loss must prove the alleged loss suffered. It followed from this reasoning that the penalties were ordered to be payable to the Commonwealth (at [94]).

246 In allowing the appeal, the Full Court held the primary judge had erred in her analysis, including by relying upon the notion that payment of the penalty to Mr Sayed would deliver him an inappropriate windfall (at 346 [58], 353–357 [101]–[122]).

247 The Full Court explained that the power to direct payment of a penalty under s 546(3) was to be construed by a consideration not only of its text, but of its context in Pt 4 to the FWA, its legislative history and the construction of its predecessor provisions, as well as the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (Explanatory Memorandum) (at 346 [59]). In particular, the Full Court noted (at 346 [60]) that the so-called “common informer” legislation that is now found in s 546(3), in one form or another, has been a part of the industrial relations framework of the Commonwealth since the passage of the Conciliation and Arbitration Act 1904 (Cth).

248 After surveying this legislative history and the provisions of the FWA, the Full Court observed (at 349 [72]) that one may begin to understand why it is that s 546(3), in Pt 4.1, Div 2, Subdiv B, empowers the Court to order that a pecuniary penalty, or a part of the penalty, be paid to the Commonwealth, a particular organisation, or a particular person and noted that:

If a union were to bring the proceeding successfully, for the benefit of its members, it may be expected that the penalty would be paid to the union. If the union brought the proceeding for the benefit of a particular member, there might be payment of the penalty to that member, on the basis he or she is a particular person to whom it should be paid; or part payment to that member and the balance to the union. If a person individually affected by a contravention brought the proceeding, then the penalty may be paid to him or her as a particular person. There is a certain symmetry between the person or entity authorised to prosecute an enforcement proceeding and the person or entity to whom the penalty, if imposed, might be paid. This symmetry is recognised by the Explanatory Memorandum and authority.

249 Reference was made (at 349 [73]) to the Explanatory Memorandum (at [2157]), which expressly notes that:

Ordinarily, any pecuniary penalty awarded by the court is paid to the applicant or, in the case of proceedings brought by a Commonwealth official such as an inspector, to the Commonwealth (on the basis that the applicant represents the Commonwealth).

250 This concept of a “usual order” was described by the Full Court (at 350 [78]) as “a long standing principle governing the exercise of the discretion to make an order directing the payment of a penalty under s 546(3)”.

251 Additionally, the Full Court referred to a debate between judges of the Court about whether the usual order should be made if payment of the penalty to an applicant organisation would result in a windfall to the organisation (at 350–353 [79]–[99]). The concern to avoid a windfall was stressed in the remarks of Finkelstein J in Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 (at 232–233 [22]–[28]) and French J in Municipal Officers Association of Australia v City of Bayswater (1987) 22 IR 45 (at 51). This was then criticised by Gray J in Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357. In this case, Gray J explained (at 371–372 [43]–[46]) that there had, for many years under Commonwealth industrial law, been a clear legislative intent that there be no order for costs in proceedings concerning matters arising under Commonwealth industrial legislation and that to utilise the power to award payment of a penalty to a party as a way of compensating the applicant party’s costs would undermine that policy.

252 The correct view, according to his Honour, was that the initiating party was normally the proper recipient of the penalty in recognition of the interests of the classes of persons accorded standing to uphold the integrity of the norms set by industrial legislation by instituting penal proceedings and (at 371 [44]) his Honour remarked that:

Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund. Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the Gibbs 37 FCR 216 exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted.

253 The Full Court in Sayed endorsed and applied Gray J’s view (at 353–354 [101]–[102]) that the power under s 546(3) is ordinarily exercised by awarding any penalty to the successful applicant, save in the cases identified by Gray J in Plancor (at 371 [44]).

254 Consistently with this approach, the Full Court (at 356 [115]–[116]) also generally agreed with Jessup J’s observations in Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146; (2013) 221 FCR 118 (at 150 [116], 151 [118]–[119]), including that the “common informer” policy considerations spoke loudly in favour of the award of a penalty to the applicant.

255 The Full Court’s approach in Sayed has been the subject of application by a number of judges where penalties levied have been ordered to be paid to a union: Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 (at [106]  per Reeves J); Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 3) [2018] FCA 1395 (at [73] per Wigney J); Ramsay v Menso [2019] FCA 1273 (at [25]–[27] per Collier J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz Pty Ltd (No 2) [2020] FCA 1073 (at [5] per Reeves J); Construction, Forestry, Mining and Energy Union v Melbourne Precast Nominees Pty Ltd (No 3) [2020] FCA 1309 (at [40] per O’Callaghan J); Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 (at [88]–[89] per Katzmann J); Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2023] FCA 104 (at [40] per Bromberg J); Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austral Ships Pty Ltd (No 2) [2024] FCA 803 (at [22] per Colvin J); Australian Salaried Medical Officers’ Federation v Peninsula Health (No 3) [2024] FCA 1255 (at [91] per Bromberg J); Construction, Forestry, Maritime, Mining and Energy Union v Qube Ports Pty Ltd [2025] FCA 208 (at [101] per Feutrill J) and, most recently, in Shariff J’s decision in Han v St Basil’s Homes (No 2) [2025] FCA 448 (at [222]).

256 The analysis in Sayed also received consideration by the Full Court (Bromberg, Moshinsky and Bromwich JJ) in Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40; (2023) 297 FCR 438. The primary judge had ordered that parts of the substantial penalty imposed on the CFMEU for its contravening (which totalled $850,000) be paid to an individual who was exposed to the unlawful picket and who was emotionally affected by it; the New South Wales Police Force, whose members had attended the “unlawful picket”; and the mobile crane company the subject of the unlawful picket, which had suffered a loss of revenue. The Full Court set aside these orders referring to the reasons of Gilmour J in Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949; (2011) 220 FCR 551 in which his Honour explained that the power to award payment of a penalty to an applicant was not intended to be compensatory in any way, but was intended to encourage common informers and that the notion that the order to pay a penalty to the initiating party could produce a windfall was a false notion (at 571 [133]–[134]).

257 The Full Court in Botany Cranes held (at 501 [238]–[239]), that the Court should exercise its discretion consistently with the usual order and that only “extraordinary circumstances” may justify the exercise of the discretion to act in a manner different to the usual order.

258 The Union submits that the usual order should be made because no “extraordinary circumstances” of the kind contemplated by the Full Court in Botany Cranes are present. To the contrary, it is said, the circumstances of the case convey that it is entirely congruent with the purposes and policy of s 546(3), and the objects of the FWA, that the entirety of the penalty be paid to the Union.

259 In particular, it was contended by the Union that payment of the whole of the penalty to it will be facilitative of achievement of the objects of the FWA, including protecting workplace rights and providing effective relief for persons who have been adversely affected because of contraventions of Pt 3–1 of the FWA.

260 In this regard, reference was made to the force of Logan J’s remarks as to industrial common informers in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652 (at [83]–[84]) where his Honour stated that:

In industrial law, there is a very particular benefit in that occurring for the community, so that the need for adherence to obligations can be brought home more widely. In bringing the present proceedings, the applicant trade unions have done a singular service not just to their members and other workers in QR Ltd and its subsidiaries, but also to the wider community.

… A trade union (or, for that matter, an employer organisation or employer which might inform), may render a particular service in circumstances where, even though a government officer such as an inspector might be permitted to bring a proceeding, for one reason or another, the executive government chooses not to do that.

261 As to quantum, the Union submitted that the fact the suggested penalty exceeds, perhaps substantially, the costs and resources expended by the Union (and in dealing with Qantas’ unlawful conduct more generally), this is not a matter that militates against the award of the whole of the penalty. The Union stresses that the notion of a windfall must, consistent with Full Court authority, be eschewed. In this regard, the Union further pointed to the analysis of the power by Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306 (at 326–327 [69]) (concerning a predecessor to s 546(3) of the FWA):

… It is a distinct power and, in my view, it is strongly arguable that it should be viewed as a power which should not be treated as impliedly constrained by the limitations imposed on a power to award costs . . . If a person or organisation successfully brings penalty proceedings, then I see no reason why an order cannot be made that the penalty be paid to that person or organisation without regard to whether the penalty might be used to defray legal costs. The use to which the penalty is put would be a matter for that person or organisation.

H.4    Consideration & Payment Order

I    The Nature of the Discretion

262 Consideration of the question as to whom the relevant funds should be paid in the circumstances of this case must start with a detailed analysis of the nature of the power being exercised.

263 In large part, this analysis has been provided by the Union’s submissions recounted above and by the detailed reasoning by the members of Full Courts in Plancor and Botany Cranes. But it is worth revisiting some first principles.

264 Section 546(3) of the FWA is in the following terms:

Pecuniary penalty orders

…

(3)  The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

(a)  the Commonwealth; or

(b)  a particular organisation; or

(c)  a particular person.

265 The term “organisation” is defined in the dictionary to the FWA (s 12) to mean an “organisation registered under the [FWRO Act]”. The Union is, of course, such an organisation.

266 Six things are immediately evident about the power.

267 The first is that the section confers, by the use of the word “may”, a discretion upon the decision maker: see s 33(2A) of the Acts Interpretation Act 1901 (Cth).

268 The second is that the discretion is not limited or confined by express words, save for (a broad) identification of permissible recipients of the whole or part of a pecuniary penalty.

269 The third, is that like all discretions conferred upon a court, it must be exercised judicially and in accordance with legal principle.

270 The exercise of a judicial discretion generally allows a judge to make a choice between lawful, but different courses of action and the concept necessarily implies choice; it follows that generally, there cannot be one uniquely correct outcome to the exercise of the discretion. Given it is inappropriate to read provisions conferring powers to a court by making implications or imposing limitations which are not found in the express words (Owners of Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 (at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ)), the suggestion of the Union that only “extraordinary circumstances” could justify the exercise of the discretion in s 546(3) in a manner different to the usual order is one with which I have some difficulty.

271 I accept the force of the analysis of the Full Courts in Plancor and Botany Cranes as to the historical development and rationale of the usual order. In my respectful view, and consistently with Full Court authority, the best way of describing the application of the usual order is like the approach taken to another broad judicial discretion: being that relating to costs. As Gleeson CJ, Gummow, Hayne and Crennan JJ explained in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 (at 62–63 [25]–[26]) although there is “no absolute rule”, one of the “general propositions” regarding an award of costs is that “the award is discretionary but generally that discretion is exercised in favour of the successful party”: see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at 88–89 [40]–[41] per Gaudron and Gummow JJ).

272 Here, there is no absolute rule as to s 546(3), and the making of an order regarding the recipient of whole or part of a penalty is discretionary, but generally, where there is a common informer, that discretion is exercised in favour of the person responsible for the bringing of the case. I do not think the Full Court cases to which I was referred require a different approach and the need to identify “extraordinary circumstances” to depart from this general or usual course in cases of this type seems to me an unnecessary complication and gloss.

273 Fourthly, textually the better view is that the payment be made to an identified recipient and not another person to hold the funds on trust for a beneficiary or beneficiaries.

274 Fifthly, the section does not provide a power for the payment to be made pursuant to an express condition or conditions. There is nothing textually or in the case law to suggest that the way in which a recipient of a pecuniary penalty proposes to spend the money is relevant to the amount that should be paid to the proposed recipient. Further, as Qantas points out by analogy, consideration of how a recipient would spend a pecuniary penalty is inconsistent with the well-established authority that a plaintiff who receives a compensatory sum is free to do with the sum awarded what they wish, and a court is not concerned with how it is applied: see, for example, Todorovic v Waller (1981) 150 CLR 402 (at 412 per Gibbs CJ and Wilson J).

275 Sixthly, having regard to the text, context and purpose, there is no reason why all orders for the payment of a penalty need to be made at the same time, or why two orders for payment cannot be made in relation to the same recipient at different times.

276 Finally, by way of preliminary observation, it is useful to have regard to the relationship between ss 545 and 546.

277 Section 545(1) confers a broad power to make “any order” that is “appropriate”. In Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 the plurality held (at 190–191 [103]):

… the first and most immediate point of significance is the breadth of the terms in which s 545(1) empowers the court to make any order the court considers appropriate. What is “appropriate” for the purpose of s 545(1) falls to be determined in light of the purpose of the section and is not to be artificially limited. As the ABCC submitted, such broad terms of empowerment are constrained only by limitations that are strictly required by the language and purpose of the section

(Footnotes omitted)

278 The relationship between the two sections is illustrated by the explanation, provided (at 191 [104]), that under s 545(1) “the types of orders that may be regarded as ‘appropriate’… are … preventative, remedial or compensatory orders, or at least do not include penal orders”.

279 Kiefel CJ (at 168 [22]) explained that s 546(1) was the applicable source of power for the imposition of a pecuniary penalty and that this specific grant of power to make penal orders in s 546(1) involved a denial of power to do the same thing under a different provision free from the conditions prescribed by s 546: see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (at 7–8 per Gavan Duffy CJ and Dixon J). Keane, Nettle and Gordon JJ reached the same conclusion.

II    Payments to Common Informers and the Unusual Circumstances of the Case

280 The first thing to note is that even if the principled approach does involve identifying whether there are “extraordinary circumstances” to depart from the “usual course”, such circumstances manifestly exist in the present case.

281 As I noted at the outset of these reasons, this is the largest and most significant contravention of Pt 3–1 of the FWA (or its predecessor provisions) in over 120 years. Certainly, insofar as my research has discovered, the quantum of the penalty vastly exceeds any other penalty recovered by a common informer.

282 Where the usual order has been made, the quantum payable pursuant to the order has been relatively modest and not wholly disproportionate with the legal costs and expenses likely incurred. This can be seen from the several examples Qantas helpfully collected and provided to the Court:

(1)    in Plancor the Industrial Relations Court of South Australia imposed a total penalty of $19,000; the Full Court found that the amount was not appropriate and remitted the matter to determine the appropriate penalties (at 372 [47] per Gray J and 379 [72] per Branson and Lander JJ);

(2)    in Sayed the penalties imposed totalled $45,000 (at 338 [3] per Tracey, Barker and Katzmann JJ);

(3)    in Botany Cranes the penalties imposed totalled $552,500 (at 498 [221]–[225], 499 [229], 500 [232] per Bromberg, Moshinsky and Bromwich JJ);

(4)    in Construction, Forestry Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 the penalty imposed was $50,000 (at [102] per Reeves J);

(5)    in Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 3) [2018] FCA 1395 the penalty imposed was $30,000 (at order 1 per Wigney J);

(6)    in Ramsey v Menso [2019] FCA 1273 the penalties imposed totalled $111,000 (at [4] per Collier J);

(7)    in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Alleged Services Union of Australia v Kentz Pty Ltd (No 2) [2020] FCA 1073 the penalty imposed was $15,000 (at order 1 per Reeves J);

(8)    in Construction, Forestry, Mining and Energy Union v Melbourne Precast Nominees Pty Ltd (No 3) [2020] FCA 1309 the penalties imposed totalled $70,000 (at orders 1–3 per O’Callaghan J);

(9)    in Construction, Forestry, Maritime, Mining and Energy Union v Richard Crookes Constructions Pty Limited [2022] FCA 992 the penalties imposed totalled $190,000 (at orders 1–5 per Wigney J);

(10)    in Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 the penalties imposed totalled $93,000 (at orders 1–5 per Katzmann J);

(11)    in Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2023] FCA 104 the penalties imposed totalled $70,000 (at orders 1–2 per Bromberg J);

(12)    in Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd (No 2) [2024] FCA 803 the penalty totalled $80,000 (at order 8 per Colvin J);

(13)    in Australian Salaried Medical Officers’ Federation v Peninsula Health (No 3) [2024] FCA 1255 the penalties imposed totalled $316,260 (at orders 8–14 per Bromberg J); and

(14)    in Construction, Forestry, Maritime, Mining and Energy Union v Qube Ports Pty Ltd [2025] FCA 208 the penalties imposed totalled $71,820 (at orders 2–5 per Feutrill J).

283 Given the present extraordinary context, it is appropriate to return to first principles and examine the underlying rationale of the usual order.

284 In Botany Cranes, Bromberg, Moshinsky and Bromwich JJ explained (at [235] 500–501) that the usual order:

… tends to encourage a “common informer” to police the relevant legislation (see Sayed at [87], [92] and [121]). Furthermore, the Full Court [in Sayed] endorsed the observations made by Gray J in Plancor at [42] and [45] that the “usual order” is “not regarded as compensatory in any way” and that there is no suggestion that the legislative intention behind the power to order payment of a penalty to an organisation or person was compensatory.

285 Although I generally accept the submissions of the Union as to both the rationale of the order and, more particularly, as to how the cases have considered the issue of a windfall, it is notable that the rejection of the importance of this notion, endorsed in Botany Cranes, arose in circumstances where the penalty amounts in Sayed and Plancor did not constitute an amount approaching a windfall of the kind potentially available if the current penalty was paid to the Union (or even a relatively modest proportion of it). Moreover, given the size of the penalty in the present case, one would think it would be unnecessary to pay the full amount to the Union in order to provide a general incentive to either the Union or other potential common informers to police obligations under the FWA.

286 After all, there are windfalls, and then there are windfalls.

287 Prior to Botany Cranes, in Plancor, Branson and Lander JJ, observed (at 379 [69]):

We understand a ‘windfall’ in this context to involve an unexpected and relatively large financial benefit. Within an organisation such as the respondent, the true cost of bringing a legal proceeding is likely to prove substantial if the time of all staff involved is appropriately accounted for and other costs, possibly including overheads, identified. Before a penalty could constitute a ‘windfall’ in the relevant sense it would need to exceed the total amount of that cost by a significant margin.

(Emphasis added)

288 This is such a case and involves a margin that exceeds, by a vast extent, the sort of margin contemplated by their Honours. As I have said more than once, this is a unique case.

289 So where does that leave us in making the discretionary order under s 546(3), when I accept that generally, the discretion would be exercised in favour of the person responsible for bringing the case?

III    Payment to the Union Justified

290 The following factors militate strongly in favour of a substantial part of the penalty being paid to the Union:

(1)    an arm of the executive government did not show any interest in investigating or prosecuting Qantas, and the Union, as a common informer, has alone borne the burden of prosecuting this litigation at first instance and on appeal;

(2)    but for the Union commencing and prosecuting, Qantas’ contravening conduct would never have been exposed and it would never have been held to account for its unlawful conduct; hence the Union has brought to the attention of the Court a substantial and significant transgression of a public obligation by a powerful and substantial employer: see CEPU v QR Limited (No 2) (at [82] per Logan J);

(3)    the risks of the litigation are best assessed ex ante and without the distortion of hindsight bias – here, the risk was of significance in three ways: (a) success in the litigation on the merits, particularly before discovery, was far from assured (see [212]–[214] above); (b) the litigation was to be commenced against a well-resourced employer with substantial assets and financial resources at its disposal and, given the stakes, would have been anticipated to spend vast legal fees to defend its position; and (c) the drain of the Union’s resources by way of legal and related costs was reasonably anticipated to be highly significant;

(4)    looked at ex post, the litigation has proven to be hard fought, and its prosecution has required not only the expenditure of significant resources but determination and skill; and

(5)    the payment of a penalty to the Union, particularly a significant sum, would strongly incentivise it and other trade unions to bring prosecutions under the FWA, particularly against employers who have extensive resources to defend their position and interests; this may well operate to enhance the enforcement of the legislative scheme effected by the FWA.

291 Additionally, subject to a class of proposed recipients discussed below, there is no reason why it would serve to better advance the objects of the FWA or, more generally, be a more appropriate exercise of discretion, to pay a part of the penalty to another identified recipient.

292 Certainly, the Commonwealth assumed no burden in pursuing Qantas’ contraventions, it did nothing to initiate proceedings against Qantas in relation to the contravening conduct (notwithstanding the Fair Work Ombudsman had standing under s 539 of the FWA). Neither the Commonwealth nor any executive government agency played a part in the proceeding at all. Further, despite the Ombudsman having an array of powers to investigate under Div 3 of Pt 5–2, no pre-litigation investigatory action was undertaken. In these circumstances, any payment to the Commonwealth would amount to a reflex wrongly based on orders made in favour of the Commonwealth in pecuniary penalty type proceedings generally (when the Commonwealth or an agency of the Commonwealth is the moving party). Its only perceived justification is the instinctive reaction that to proceed otherwise would result in the Union simply receiving too much money. It seems unsound to allow this visceral reaction to be determinative in the exercise of the discretion.

293 Nor is there any basis to make a payment to any other organisation registered under the FWRO Act.

294 Analogies have their obvious limitations, but a dominating concern about the quantum to be paid to the Union at the conclusion of this case is in some ways reminiscent of similar concerns sometimes expressed at settlement approvals in class actions when large payments are proposed to be made to a litigation funder.

295 In Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289, some objections were received to the payment of what I described (at [52]) as the “extraordinarily large amount of money that is proposed to be paid to the funder”. Among other reasons, the payment was ultimately approved because:

(1)    although the sum proposed to be paid “was large in absolute terms”, this was a function of the size of the dispute and the large settlement achieved. Further, I emphasised that the “litigation could never have proceeded without funding” and “[b]ut for the funder accepting a significant risk, the group members’ claims would never have been vindicated” (at [53]);

(2)    there was “a real danger of hindsight bias” and to “look back from where we are now and determine whether the common enterprise was likely to yield success when it was first conceived, creates real challenges”, particularly because when “these cases were commenced, they raised complex issues as to liability” (at [54]);

(3)    the evidence established “that other funders were not interested in taking on these cases, nor were they interested in taking on a proportionate share of the funding risk in exchange for part of the consideration provided by group members. Just because the funder’s ship has come in, it does not seem to me to be a principled basis for changing the bounty, the terms of which were struck when the voyage commenced” (at [55]); and

(4)    the perceived problem with “the amount paid to the funder in this case is not its proportion to the overall settlement sum, but its sheer size” and “just because these cases have been successful, and the return has been handsome, it does not mean that the funder’s business has been successful in other cases where the risks inherent in litigation funding have materialised.  It is all very well focussing on the successful cases, but any fair assessment of reasonable returns must be seen in the context that the risks of litigation funding sometimes come home to roost” (at [56]).

296 Adapting these observations to the present circumstances is imperfect, particularly given the amount proposed to be paid to the funder reflected a bargain. But it is notable that: (a) this case would never have been brought without the Union and it did have the beneficial result of establishing a breach and providing some compensation to many; (b) looking at the case now, after it has safely been concluded, is very different from assessing the risks of the litigation when it was about to commence; and (c) it does not assist the enhancement or enforcement of the FWA to only incentivise common informers to be “flat track bullies”, that is, to only bring proceedings where the risks are perceived to be minimal or only against those without extensive resources to defend their position and interests.

297 This last point seems to me to be of importance and is worth elaboration. It is all well and good to enforce the law against those from whom relief is easily obtained or against those with finite resources preventing prolonged resistance. It is obviously simplistic to say the bigger the company, the bigger the employer; but large corporations with significant resources and access to an array of specialist industrial lawyers are often large employers. It is a formidable prospect to spend public funds taking on a fight against such a corporation, even if it was thought there were reasonable prospects of success. Although FWA regulatory proceedings are brought in what is sometimes inaccurately called a “no costs jurisdiction”, it is still no doubt easier for somebody having to husband limited resources to decide to bring a prosecution against alleged contravenors where the prospect of prolonged disputation and wasted costs is lower. Industrial organisations, for a variety of reasons, may have a greater appetite for risk. Payment of a significant portion of the penalty to a common informer might increase the detection and prosecution of future contravening conduct by very large employers.

298 Given the order contemplated is not to be regarded as compensatory in any way (Botany Cranes (at 500–501 [235])), some guide to appropriate quantum can be achieved by focussing on the relationship between risk and reward (linked, as this concept necessarily is, to incentive). It does not strike me as intuitively wrong that greater rewards might be appropriate in circumstances of greater risk.

299 In all the circumstances, the payment of at least a large part of the penalty to the Union is warranted. I am satisfied such a course will facilitate and promote both specific and general deterrence. As the Union correctly submitted, it will send a message to Qantas and other well-resourced employers that “not only will they face potentially significant penalties for breaches of the [FWA], but that those penalties will be provided to trade unions to resource those unions to fulfil their statutorily accorded roles as enforcers of the [FWA] and to seek the enhancement of the terms and conditions of employment and the industrial interests of employees whom they represent”.

IV The Position of the Affected Workers

300 When it comes to the affected workers, the submission of the Union is that “they will be fully compensated for their individual loss and damage arising from the contravening” and that penalty amounts “are not intended to be compensatory in [sic] and there is no call for affected employees to be awarded penalties”: see Plancor (at 371 [42], 371–372 [45]) and Botany Cranes (at 501 [239]); and “they have not borne the burden of prosecuting these proceedings”.

301 At first glance it might be thought this submission made to benefit the Union (and in opposition to a benefit being conferred on the affected workers), creates a real difficulty. But the fact the submission is open to be properly made points to the unusual role the Union occupies in this litigation.

302 In Section B of the RJ, as part of the Full Court in Elliott-Carde v McDonald's Australia Limited [2023] FCAFC 162; (2023) 301 FCR 1 (at 55 [354]), and in Elliott-Carde v McDonald's Australia Limited (Stay Application) [2023] FCA 1210; (2023) 301 FCR 84 (at 113 [117]ff), I explained that although it might be thought the Union is performing a representative function, quite similar to other representative functions known to the law, “any such comparison needs to be carefully examined and not decontextualised”. I further explained 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 affected workers. Further, the affected workers are not privies of the Union in any relevant respect but rather are best described as “affected third parties”: see also Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority [2024] FCA 848; (2024) 333 IR 377 (at 410 [151]ff per Colvin J).

303 But it is necessary to say three things about the submission of the Union as to the affected workers.

304 First, for reasons I explained (at [11] to [18] above), I do not accept the evidence establishes that the affected workers will necessarily be “fully compensated”. Indeed, as I have already partly explained, the whole notion I can presently reach a conclusion all affected workers will be “fully compensated” on the material before me is highly problematical.

305 For a start, what does “fully compensated” mean when said at such a high level of generality devoid of evidence of statistical or other analysis? As Lord Upjohn once observed: “the assessment of damages is not an exact science” (Koufos v C Czarnikow Ltd (The Heron II) [1967] 3 WLR 1491; [1969] 1 AC 350 (at 425)). Moreover, here we are not talking about a common law remedy which has been generally regarded as non-discretionary (notwithstanding the view that “rules” such as remoteness, mitigation and contributory negligence at common law “embrace unrecognised discretion”: see Prof David Wright, “Discretion and Common Law Remedies” (2002) 23 Adelaide Law Review 243 (at 250)).

306 I explained, in considerable detail, the principled approach to the present compensatory inquiry in Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348; (2021) 304 IR 280 (at 290–293 [29]–[37]). I repeated and expanded upon that analysis in the CJ (at 212–215 [63]–[79]). I will not reproduce it and will merely note its discretionary nature and the potential imprecision of the exercise: CJ (at 212 [64], [67], 215 [79]).

307 Here, the comparator in assessing the posited “full compensation” is, presumably, a bespoke application by an affected worker for a discretionary order under s 545(1) having regard to the individual circumstances of that affected worker: see s 545(2)(b). Needless to say, such an assessment could involve quite individualised factors, or factors only present when assessing a small subset of workers.

308 Properly analysed, the suggested “full compensation” figure relied upon by the Union is an aggregated amount Qantas was prepared to agree to pay, on a net present value basis, to quell each of these over 1,800 controversies without additional cost or other expense to Qantas, being an amount agreed to by the Union as being sufficient having regard to its role in this litigation. Of course, save for taking into account my findings in the LJ and CJ (to the extent relevant), I am in the dark as to whatever enquiries the Union made, what analysis it undertook, and what other factors were considered, including whatever matters it was entitled to consider by reference to its own interests (given it had no fiduciary duties to affected workers in negotiating the settlement of the claim it was entitled to bring).

309 Secondly, as I explained in Patrick Stevedores (at 292 [35]), the reasoning which developed as applicable to other statutory schemes that provide for compensation for breach of civil remedy provisions is applicable in the context of s 545(2)(b) of the FWA. The words “because of” (and other like formulations of a test for causation) have a well-established meaning in the context of principles of statutory compensation generally, and like wording is used elsewhere. We know, in this regard, that the application of a “but for” test has an important role as a negative criterion (in that it will usually exclude causation if not satisfied) but that it is inadequate as a comprehensive positive test. It seems to me probable that there may be expenses incurred by an affected worker that, in a simple “but for” way, have been a factual consequence of the contravening conduct and yet which are not within that range of losses that are regarded as sufficiently causally connected to fall within the range of proven recoverable loss. In this regard, it is to be recalled that when a Court is considering a claim for recoverable loss, it is not merely engaged in the factual, or historical, exercise of explaining, and calculating the financial consequences of, a sequence of events, of which the contravention forms part; rather it is attributing legal responsibility: see I & L Securities Pty Limited v HTW Valuers [2002] HCA 41; (2002) 210 CLR 109 (at 119 [26] per Gleeson CJ).

310 Put more simply, there may be a range of losses or expenses which would not have been incurred “but for” the contravening conduct but would not be expected to be part of a recovery under a discretionary order for statutory compensation.

311 By way of illustration, let us ponder the circumstances of one sacked, healthy and motivated 60-year-old man who very much wanted to continue work, had a mortgage and other living expenses to pay, a wife to support, and who still wished to provide some measure of financial support to his children. He wanted to remain a baggage handler until he was much older but cannot now secure such a role.

312 Perhaps by undertaking a course of vocational training, however, this fellow may be able to improve his lot by increasing his prospects of gaining employment in a quite different field. Although the training or related expenses he may incur (or may wish to incur) is not properly recoverable as statutory compensation, it is not presently evident to me that he is a less appropriate recipient of a small part of the penalty than the Union who has already been fully compensated and has separately been handsomely incentivised to act as a common informer. It is easy to imagine a range of similar circumstances.

313 Thirdly, although Qantas “accepts that its only interest is in the quantum of penalty that should be paid”, it has provided some assistance on the applicable principles and submitted that if “the Court were to form the view that not all of the penalty should be paid to the [Union], the Court may consider that it is appropriate to award some of the penalty to the [a]ffected [workers]”. This is disputed by the Union. Recognising the prospect that things might come to this, I raised in advance of the hearing whether the Court should appoint an amicus curiae to provide submissions as to whether some part of the penalty should be paid to specified affected workers or some related “particular person”.  

V    Conditions on Payment to the Union?

314 Consistently with my conclusion as to the approach mandated by the text of s 546(3), the Union initially submitted that it is not for the Court to “canvass or consider” the way a recipient will spend any penalties directed to be paid to it. But, in any event, the Union submitted penalties directed to be paid to the Union will be utilised for lawful and legitimate purposes including the enforcement of the norms of conduct stipulated in the FWA as detailed in the Union’s submissions.

315 This subtly changed. On 8 July 2025 I noted in an email to the parties:

… in the AS at [200]ff, reference is made to the [Union]’s rules set out in Part 2 dealing with the objects of the Union, which include the promotion, fostering and maintenance of the best interests of members, securing improved conditions for members, affording assistance to members in cases of industrial oppression and improving the status of members (including via training and education) and that any amount in excess of the costs incurred in dealing with and responding to the outsourcing and prosecution of these proceedings, those purposes will be lawful “and will be made within the framework provided by the TWU’s rules and the provisions of the FWRO Act”.

His Honour’s preliminary view (expressed at T110.26) was that an order for payment of any penalty to the Union “subject to conditions that the money be used in a particular way” would be beyond power (and senior counsel’s “instinctive reaction” was the same). His Honour requests the Union to confirm … whether: (a) this remains the Union’s considered position; (b) whether the purposes for which the monies the subject of the payment will be used would be a relevant consideration in considering whether it is appropriate to make any order for payment in favour of the Union; (c) whether any undertaking is proffered by the Union to use any monies paid in the way foreshadowed by its submissions and, if so, the specific terms of any proposed undertaking; and (d) whether it is open for the Court to take into account, in considering whether an order for any payment is appropriate, the proffering or non-proffering on an undertaking (and, if proffered, the terms of the proffered undertaking).

316 The response was provided the following day and the Union’ position was that: (a) it is not within the power conferred by s 546(3) to order a pecuniary penalty be paid to a person subject to conditions (a contention accepted above); (b) “the purposes for which a penalty may be used by a recipient may be a potentially relevant consideration” (emphasis added); and (c) it was bound by its Rules and the requirements of the FWRO Act to apply any penalty ordered to be paid to it lawfully and consistently with its Rules (including the general objects in r 2(1) and specific objects in r 2(2)) and the FWRO Act.

317 The Union then went on to proffer the following undertaking to the Court:

The applicant undertakes to the Court that any penalty amount ordered to be paid to it will be applied for lawful purposes in accordance with its Rules and the Fair Work (Registered Organisations) Act 2009 (Cth).

318 It further accepted that an undertaking of the kind proffered above, and its terms, may be “a potentially relevant consideration” and offered that should the Court consider that the proffered undertaking is inadequate or could be differently drafted, the Union “would be willing to countenance amendment”.

319 Upon reflection, the undertaking seems to me to be of, at best, dubious utility. It merely requires the Union to promise it will obey an aspect of the law. One might as well receive an undertaking it will not breach other legal norms.

320 Accordingly, I do not propose to pursue this issue further.

I ORDERS

321 I will make an order that pursuant to s 546(1) of the FWA, Qantas pay a pecuniary penalty in the amount of $90 million.

322 Despite the form of orders made in some FWA pecuniary penalty cases, I do not propose to stipulate the penalty be paid by a particular date. With respect to those who have made such a form of order, I do not consider this is the correct approach. The section authorises an order that a person pay a pecuniary penalty in an appropriate amount (s 546(1)) and the identification of the recipient of a payment of the penalty in whole or in part (s 546(3)). Section 546(4) provides that the penalty so fixed “may be recovered as a debt due to the person to whom the penalty is payable”.

323 Upon order for payment under s 546(3), the debt crystallises. Of course, in this case, there is no reason to think the debt will not be paid, but as matter of principle, the orders should reflect the fact that recovery can occur in default of payment by entry of judgment and then execution of that judgment. Liberty to apply should be given to the recipient to be exercised in default of payment. This would also mean that if there was tardiness, despite s 547(1), interest would then run on the sum merged in the judgment upon its entry (and not the penalty that gave rise to the debt): see s 52(1) of the FCA Act.

324 Having regard to all the circumstances, I consider it appropriate that an amount of the penalty in a sum of $50 million be paid to the Union.

325 I will reserve, for later consideration, the making of further orders for the payment of the $40 million balance of the penalty. In this regard, there are real competing interests as between the Union and the affected workers (or at least some of them) and the prospect that informed my suggestion of appointing a contradictor to the Union’s submissions has now been realised.

326 I propose to list the matter for a further hearing to provide for final resolution of the payment away of the balance of the penalty.

327 My preliminary view is that a case management hearing be held as soon as practicable, at which time I will: (a) excuse Qantas from any further participation in the hearing; (b) appoint amici curiae and solicitors to instruct them; (c) make orders for the service on the Union of a proposed final order or orders by the amici (I will assume the Union will maintain its present submission); (d) make orders for the service of any evidence; (e) consider whether an order should be made under s 545(4) of the FWA and/or s 54A of the FCA Act providing for a referee to inquire into and report upon certain issues to be specified relating to the circumstances of some or all of the affected workers; and (f) make an order under s 545(4) of the FWA providing for a notice to be sent to affected workers regarding the outcome of the penalty hearing and the process now to be undertaken by the parties and the Court.

328 My intention, prior to making proposed orders (a) and (b), would be to hear:

(1)    from Qantas as to whether it is lawful for me to make an interim order under s 23 of the FCA Act or pursuant to the implied power of the Court, that the balance of the penalty (the sum of $40 million) be paid into an interest bearing account to be controlled by the Court until further and final s 546(3) orders are made (which would then serve to conclude the matter from the perspective of Qantas upon payment into Court); and

(2)    from the Union on the question of whether they would oppose, if necessary, future orders being made under s 546(3) for payment of part of the penalty to particular persons, being the amici (and their solicitors) and any referee, in the amount of their costs. My preliminary view is that such orders would be licit despite their broadly compensatory nature (although they may prove unnecessary if those persons could be paid from interest accruing on the balance of the penalty sum, being $40 million).

Associate:

Dated: 18 August 2025