Federal Court of Australia

Transport Workers’ Union of Australia v Qantas Airways Limited (Administration Extension Application) [2026] FCA 1013

ORDERS

THE COURT ORDERS THAT:

1.    Any interlocutory application concerning a variation of the orders made on 19 December 2025 be listed for hearing at 3.00 pm on 6 August 2026.

2.    Any further affidavit material or submissions to be relied upon at the hearing be filed and served by no later than 4.00 pm on 4 August 2026.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

1    I have an appeal listed before me as a member of the Full Court at 10.15 this morning and, given the importance of this application, I simply do not have sufficient time to hear and determine it properly today. Further, for reasons I will explain, I wish those interested to have the opportunity of addressing some matters to which I refer below.

2    I have, however, read the interlocutory application field to seek orders varying my orders, the affidavits of Ms Dawson-Field, the submissions of Maurice Blackburn (Administrator) delivered at 8am this morning, and the material filed by an affected worker, Ms Shields. I have also reviewed the earlier orders of the Court, the correspondence that has passed and the relevant parts of the previous judgments and transcript, including the transcript of 16 December 2025 when the orders the subject the present application were made (and which were made expressly to ensure “there’s not inordinate delay” in the distribution of amounts in the control of the Court to affected workers).

3    Having done so, despite its urgency, I have reached the clear view that this is not an application that ought to be determined in a hurry and with only superficial attention given to the detail of what has occurred.

4    Accordingly, I propose to hear full argument. The first occasion upon which I can do so is, regrettably, after the present time for compliance with the existing orders has expired. That hearing will therefore take place at 3.00 pm on Thursday, 6 August 2026.

5    If either the Administrator, the amici, or indeed any person asserting standing wishes to place further affidavit material or submissions before the Court addressing the matters to which I am about to refer, that material should be filed and served no later than 4.00 pm on Tuesday, 4 August 2026.

6    I think it is appropriate that I provide brief reasons as to why I will make orders facilitating this course.

7    This application has caused me some perturbation, not because I have reached any concluded view that the explanations that can be advanced by the Administrator will be inadequate or that the orders sought should necessarily be refused, but because, having read the material, I presently do not sufficiently understand what has occurred since I made the orders. Before I could responsibly exercise the discretion that is now sought to be invoked, I require more information and need to consider the consequences of the course urged upon me.

8    It is necessary to keep firmly in mind that this application does not arise in isolation. It comes at the end of a very long piece of litigation and, unless one understands that history, it is difficult to appreciate why I propose to approach the determination of the present application in the way that I do.

9    The outsourcing decision occurred in late 2020. An expedited hearing was held after a compressed timetable (indeed more compressed than originally sought by the applicant) and notwithstanding highly complex liability issues were involved, final judgment was delivered within a year of the making of the unlawful outsourcing decision. This timeframe required very considerable work outside of usual hours by the Court and its staff.

10    The reinstatement application followed before Christmas 2021. I delivered very lengthy and detailed ex tempore reasons during the long vacation, because it seemed to me important that those affected by the litigation, both the workers and Qantas, were entitled to certainty and an urgent determination would allow the reinstatement judgment to be challenged at the Full Court hearing that was then already fixed in the new year.

11    Following all the appeals, I then determined, as quickly as possible, the three “test” compensation cases in October 2024. Throughout that period, I sought to ensure that matters affecting these workers were dealt with as expeditiously as possible because I appreciated that behind what can sometimes become rather abstract legal argument were more than 1,800 people whose lives had been significantly disrupted by conduct that had been found to contravene the Fair Work Act 2009 (Cth).

12    It is against that background that I confess to being disturbed that, almost six years after the outsourcing decision, the Court is now being asked, at the heel of the hunt, in effect, to abandon a timetable which it had every reason to believe was realistic when it was fixed only seven months ago (and which was only ordered after specific instructions were sought on a realistic time period for distribution of compensation).

13    There is another aspect of the history which is also important.

14    Throughout the settlement process I expressed reservations about the structure that had been adopted for this litigation. Unlike a class action under Part IVA, the ultimate agreement as to the payment of compensation was not a settlement requiring Court approval followed by Court-supervised administration. Rather, it was a consensual paction entered by the applicant acting in its representative capacity, with the administration of the compensation scheme occurring outside the supervision of the Court.

15    As I have noted, more than once in this matter, one of the advantages of Court-supervised settlements is that the Court retains visibility of what is occurring. If difficulties emerge, they emerge under the Court’s eye. If timetables become unrealistic, the Court is informed immediately. If unforeseen complications arise, they can be addressed as they arise, not at one minute to midnight when expectations have arisen that things are going swimmingly and to plan. Here, by contrast, the Court was deprived of that degree of that supervision.

16    Notwithstanding this, when it then came to penalty, things changed. Importantly, the orders made in December 2025 effectively linked or tied the Court’s own orders for the distribution of the remaining $40 million civil penalty to the completion of the compensation administration. I accepted that course because it appeared then to be fair that the remaining penalty should be distributed pro rata by reference to the compensation ultimately assessed as payable to each worker. This appeared a rational and equitable way of proceeding if compensation payments were to be paid by the Administrator with some alacrity.

17    But the consequence of that decision was that the Court’s own orders became wholly dependent upon the timely completion of an administration occurring outside the Court’s direct supervision.

18    It is because of that circumstance that I regard the present application as requiring particular scrutiny.

19    I hasten to add I have reached no concluded view that the explanations advanced by the Administrator will be inadequate upon proper analysis.

20    The present affidavit identifies a range of matters which may ultimately explain, or substantially explain, the delay. It refers to unexpectedly large numbers of independent medical examinations, difficulties with the quality of many medical reports, taxation issues, Services Australia, the review of approximately 18,000 documents, and the practical complexities associated with administering a scheme affecting more than 1,800 workers.

21    If those matters are established, they may well justify a substantial extension of time. But the more I read the affidavit, the more questions it seemed to raise.

22    Many of these matters do not appear to have come entirely from left field. The affidavit demonstrates that discussions with Services Australia had commenced many months ago. The application for the ATO class ruling had been made in July 2025. The Administrator obviously knew that there would be a very substantial number of workers, that many independent medical examinations would be required, that review rights existed, and that this would be a complex administration.

23    That is not to say that the precise extent of every difficulty could necessarily have been foreseen. But I do need to understand how it came to pass that a timetable which appeared realistic in December ultimately became one which is now said to be wholly incapable of compliance.

24    The chronology also raises several issues.

25    The affidavit identifies a series of reasons why the existing timetable has not been met. They include the unexpectedly large number of independent medical examinations, the quality of a substantial number of the resulting reports, continuing taxation issues, dealings with Services Australia, extensive work associated with the collection and verification of taxation information, and a range of other administrative complexities.

26    Those matters do not appear, at least on the present material, to have arisen suddenly or unexpectedly in the latter half of June 2026. They developed progressively over many months, and some must have been known well before the December orders were made. Others, according to the affidavit itself, emerged during the administration, including, for example, concerns regarding the quality of medical reports said to have been identified, for reasons I do not presently understand, only in May 2026.

27    That gives rise to what is presently, for me, a substantial question. If the matters now relied upon are of such significance that they prevent compliance with the Court’s timetable (and indeed are now said to be of such magnitude that the Administrator cannot presently identify with any confidence when the administration will actually conclude), it is difficult to understand why it was only by about the middle of June that it became apparent that compliance with the Court’s orders was impossible.

28    Put another way, if these matters had developed progressively over a considerable period, why did it take until mid-June for it to become apparent that the Court’s timetable could not be met? Conversely, if it only became apparent in mid-June that compliance was impossible, I need to understand better what occurred at or about that time which transformed what had previously appeared to be a manageable administration into one where there is now not merely a need for additional time, but an inability to identify any reliable completion date at all.

29    At present, I simply do not understand that chronology. I may well be missing something, but nor do I understand the criterion or criteria by which the Administrator has apparently formed the view that it is better to adopt the course of providing indulgences to those who have been tardy (or who not cooperated efficiently with the Administrator) to the course of fixing deadlines for participation - so as to ensure that those workers who have done what has been asked of them promptly are paid in accordance with the expectations previously raised by communications with the workers as to anticipated distribution dates. This latter course is, of course, common in Court-approved settlement distributions.

30    If there is a satisfactory explanation, then no doubt it can be given. But, on the present material, it seems to me, at least prima facie, that there is a substantial disconnect between the history of the administration described in the affidavit and the point at which it is said to have become apparent that compliance with the Court’s orders was impossible.

31    Even if I were ultimately persuaded that it only became apparent in mid-June that the timetable could not be met, that would simply give rise to a further question. Why was the Court not informed immediately? Once it is appreciated that compliance with orders of the Court has become impossible, the proper course is to approach the Court without delay. Here, however, the Administrator decided to wait, with the consequence that the Court was not approached until 21 July, only some ten days before the operative deadline.

32    At least on the present material, that strikes me as a very odd state of affairs. It may be capable of complete explanation, and I hope that it is; but I need to understand it much better than I presently do.

33    There is then a further aspect of this matter which causes me considerable concern. That is the manner in which this application first came before the Court.

34    The affidavit reveals that the first and belated approach was by correspondence with my Chambers. It was only because the Court immediately indicated that an application of this significance could not appropriately be dealt with in that fashion that the present application was filed and listed in open court.

35    I have to say that, at least prima facie, I find that troubling.

36    Court orders are not like the traffic lights in Palermo. They are not there merely to be observed when it is thought convenient to do so. If compliance becomes impossible, the proper course is to approach the Court promptly, explain the position candidly and seek appropriate relief. What ought not occur is that the Court is presented, at one minute to midnight, with what was presented as a fait accompli.

37    The very reason I appointed the amici in relation to the distribution of the remaining penalty was because I considered that the interests of the affected workers required independent representation before the Court. But the chronology presently before me appears to indicate that the Court was first approached privately by correspondence, and only thereafter at my direction were the amici informed and the affected workers notified that an application would be made.

38    Applications affecting the rights and expectations of more than 1,800 people ought to be brought openly, on evidence, and those whose interests are affected being informed that the application is to be made. That is not simply a matter of procedural niceties. It goes to fundamental notions of open justice and to the Court’s supervisory responsibility in relation to orders affecting so many people.

39    One of the matters I therefore wish to understand better is why that course was not adopted from the outset and much earlier.

40    I also have before me material filed by affected workers. I approach that material with appropriate caution. Some of the legal assertions contained in it plainly cannot simply be accepted because they are made. Equally, the Court cannot assume that the views of one affected worker necessarily represent the views of all.

41    But that material nevertheless demonstrates that there are workers who say they complied promptly with every request made of them, underwent repeated medical examinations, supplied repeated documentation and remain profoundly distressed by the continuing delay. There are also complaints about communication. Whether those complaints are justified wholly, partly or not at all, I do not presently know. But they are matters which ought to be properly examined.

42    In those circumstances, before I could responsibly exercise the discretion now sought, I need to understand whether the delay is justified; whether the existing orders should be varied and, if so, upon what terms; whether any sanction or consequences follow from any non-compliance that has occurred or may occur; and why the Court, the amici and the affected workers were not informed promptly once it became apparent that compliance with the Court’s orders was no longer possible.

43    Further, and perhaps most significantly, the Court has control of over $35 million that is to be distributed to others. My intention is that money should be in the hands of the workers and not the Court. Accordingly, it appears to me necessary to consider revisiting the mechanism by which the remaining penalty is to be distributed, given that its payment has become dependent upon a delayed administration outside the Court’s direct supervision (and which, on the present material, I have no confidence I know will be completed).

44    For those reasons, I am not prepared to determine the application today. It will be listed at 3.00 pm on Thursday, 6 August 2026, with any further affidavit material to be filed and served by 4.00 pm on Tuesday, 4 August 2026.

Associate:

Dated: 29 July 2026