Qantas workers unlawfully retrenched as COVID-19 gripped Australia in 2020 would have lost their jobs anyway as the virulent delta strain reared its head in a year later, a judge has heard.
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The airline is being sued by the Transport Workers' Union in the Federal Court after the firm laid off almost 1700 ground staff in November 2020.
In July 2021, Justice Michael Lee found the move was designed to deprive workers of being able to bargain for a new enterprise agreement and, as such, contravened employment law.
Qantas and the union returned to court on Wednesday, when the judge heard further submissions about how much compensation should be paid to three workers who lost their jobs and were being used as test cases.
The airline previously argued that the workers would have been retrenched anyway in November 2020 and should receive no payout.
There were other, lawful reasons for the outsourcing decision such as cutting the costs of the company during the pandemic, it has said.
On Wednesday, Qantas barrister Michael Dalton SC argued that staff would have been made redundant in August 2021 as the delta strain further stifled domestic and international flying activity.
This situation mirrored the "unusual concatenation of events" that Justice Lee found occurred in 2020 regarding COVID-19, lockdowns and border closures, Mr Dalton said.
Given there were no other ways to cut costs, Qantas would have moved to outsource in August 2021, he argued.
"Are you effectively saying I should find that essentially a certainty?" Justice Lee asked.
"Close to it - we say it's very likely," Mr Dalton replied.
In 2021, the airline had already stood down 10,000 employees, retrenched thousands more staff and sold its land-holding in the Sydney suburb of Mascot, the court heard.
"Everything was on the table at that time," Mr Dalton said.
Justice Lee said that everything he had seen in the case showed a company focused on cutting costs as quickly as possible in a catastrophic set of circumstances.
"Qantas was intent on doing everything it could to save as much money as it could in this process, irrespective of how it affected the employees," he said.
TWU barrister Mark Gibian SC previously suggested there was a chance the staff could still be employed now if they were not retrenched in 2020.
Justice Lee called that claim "unrealistic" given what had happened during the pandemic.
Once the judge makes findings for the three test-case employees, it is hoped the union and airline can work out how much compensation is owed to all retrenched staff.
The TWU is also seeking penalties against Qantas, although these will be determined at a later date.
In December 2021, Justice Lee rejected a bid by the union to have the workers reinstated at Qantas after finding that proposal was impractical.
The judge's findings that the terminations were unlawful were unsuccessfully appealed by Qantas in both the Full Court and the High Court.
The hearing continues.
Australian Associated Press
