Transport Workers' Union of Australia v Qantas Airways Limited

I, [name] of [address], on [date] hereby undertake to the Court as follows:

1. In this undertaking: (a) Confidential Information means any information provided to the Social Research Centre Pty Ltd in accordance with order 5 of these orders. (b) Court means the Federal Court of Australia. (c) Proceeding means proceeding No NSD1309 of 2020 brought by the Transport Workers Union of Australia against Qantas and QGS (including any appeals from a decision of the Court in the Proceeding).
2. I will not use the Confidential Information for any purpose other than for the purposes of the administering the survey in the Proceeding.
3. I will keep the Confidential Information confidential and will not disclose the Confidential Information directly or indirectly to any person, other than for the purposes of the administering the survey in the Proceeding.
4. The restrictions in this undertaking shall not apply if, and to the extent that, the Confidential Information is in, or enters, the public domain, other than as a result of a breach of this undertaking.
5. I acknowledge that: (a) A breach of this undertaking could constitute a contempt of court which, if proved, could result in the imposition of a penalty of a fine, imprisonment or sequestration of property; and (b) my obligations in this undertaking will continue after the final determination of the Proceeding and the destruction or return of the Confidential Information. SIGNED by [Name]

in the presence of:

Signed by [Name] Signature of the witness, whose name and address appears below

(Delivered ex tempore, revised from the transcript)

LEE J: 1 These reasons assume a familiarity with my previous judgments in relation to this matter and adopt their abbreviations: Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; Transport Workers' Union of Australia v Qantas Airways Limited (No 2) [2021] FCA 1012. 2 After delivering the liability judgment and then ordering declaratory relief, the issue arose as to what further steps need to be taken in order to resolve this controversy consistently with the overarching purpose. The case management of that issue now arises in a context where Qantas Airways Limited (Qantas) has filed an application for leave to appeal against my finding that it engaged in conduct in contravention of s 340(1)(b) of the Fair Work Act 2009 (Cth) (Act). 3 The application for leave to appeal led to further interlocutory dispute with regard to the leave application. Qantas made an application for a stay of the current proceeding before me until the application for leave to appeal (and any appeal) had been determined. That application was heard by Perram J on 20 September 2021 and, the following day, his Honour refused it and provided reasons: see Qantas Airways Limited v Transport Workers' Union of Australia [2021] FCA 1136. In refusing the application for the stay, his Honour accepted that (at [9]): [A]ny delay in the trial of the reinstatement aspect of the case will be prejudicial to the [Union]. There is a real risk that the relief to which it will be entitled will be imperilled the longer that it takes to determine the question of reinstatement. 4 His Honour further accepted (at [10]) that if a stay was not granted, Qantas would also suffer "irremediable prejudice" in that it would be forced to expend substantial funds in the preparation of a case for hearing before me which, should the appeal be successful, would have been incurred unnecessarily. As his Honour recognised, this is a particularly important consideration in cases of this type, given the applicability of s 570 of the Act, which displaces the usual principles that apply relating to costs. Further, his Honour made reference (at [10]) to the amount of executive time that would need to be expended, a matter which his Honour took to be exacerbated by the circumstances of the pandemic. 5 Although a crude summary does not do justice to his Honour's reasons, his Honour (at [14]) refused the stay because of his impression that the risk of prejudice to the Union outweighed the risk of prejudice faced by Qantas. 6 With respect to his Honour, that is the conclusion that I had also reached some time before in pressing on with the case management of the relief hearing, and it is the view that I retain. This case has been accompanied by a good deal of commentary. It was initially said that this was a "test case" about outsourcing (which it never was). There has been some publicity to the effect that a consequence of my finding would be the reinstatement of all affected employees, and the contrary position has also been advanced publicly. 7 All of this must be somewhat perplexing to non-lawyers whose lives are affected. A very large number of persons will be impacted by the remedial response to the contravening conduct established. Although the precise numbers do not matter, there were apparently 1680 affected employees performing ground operations. Put broadly, the Union is seeking an order to reinstate these affected employees on a "global" basis (that is, unless they make a decision not to take up reinstatement). 8 I suspect many of these people and their families are currently in a form of stasis, unable to make any significant medium or long term decisions concerning their economic future. It is of signal importance that some certainty be given to these people and their families as to whether reinstatement is going to be ordered. Although Qantas wishes to defer any resolution, certainty (or at least certainty subject to any appeal by either party) may also be of some assistance to it. 9 When I first came to considering the question of the appropriate remedies, a discrete hearing dealing only with reinstatement was one in respect of which I expressed a considerable reservation. This reservation had two aspects. 10 The first was the general consideration that, in the ordinary course, all issues should be determined at the one time and experience suggests that separating out questions can be a dangerous process and the perceived benefits can prove illusory. 11 The second related to the nature of the relief sought. I ordered a points of claim document to be filed by the Union that required it to identify, with specificity, the relief sought. That relief is in the following terms: Points of Claim 1. Orders pursuant to s 545(1) and/or 545(2)(c) of the Fair Work Act 2009 (Cth) (FW Act) that Qantas Airways Limited reinstate employees: (i) who were employed by it to perform work in its ground handling operations and to whom the Qantas Airways Limited and QCatering Limited - Transport Workers Agreement 2018 (QAL Agreement) covered and applied who were terminated as a result of Qantas' decision to outsource its ground handling operations announced on 30 November 2020 (Affected Qantas Employees); and (ii) who do not elect by notice in writing to Qantas within 14 days of these orders not to take up reinstatement, to the positions they held immediately prior to the cessation of their employment by no later than 28 days of these orders being made. 2. Orders pursuant to s 545(1) and/or 545(2)(c) of the FW Act that Qantas recognise the continuity of service and employment of the Affected Qantas Employees reinstated in accordance with Order 1 above. 3. Orders pursuant to s 545(1) of the FW Act that Qantas treat as null and void the termination of its contract for services with Qantas Ground Services Pty Limited (QGS) as a result of Qantas' decision to outsource its ground handling operations announced on 30 November 2020 and by no later than 14 days of these orders being made re-engage QGS to provide the ground handling services it previously provided under that contract for services. 4. Orders pursuant to s 545(1) and/or 545(2)(c) of the FW Act and/or s 23 of the Federal Court of Australia Act 1976 (Cth) that within 7 days of Qantas re-engaging QGS in accordance with Order 3 above, QGS reinstate employees: (i) who were employed by it to perform ground handling operations work under its contract for services with Qantas and to whom the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (QGS Agreement) covered and applied who were terminated as a result of Qantas' termination of QGS' contract for services (Affected QGS Employees); and (ii) who do not elect by notice in writing to QGS within 14 days of these orders not to take up reinstatement, to the positions they held immediately prior to the cessation of their employment by no later than 28 days of these orders being made. 5. Orders pursuant to s 545(1) and/or 545(2)(c) of the FW Act that QGS recognise the continuity of service and employment of the Affected QGS Employees reinstated in accordance with Order 4 above. 6. Orders pursuant to s 545(1) and/or 545(2)(b) of the FW Act that Qantas pay compensation for economic loss to Affected Qantas Employees; (i) in relation to those Affected Qantas Employees who have elected to be reinstated, up to the date they are reinstated in accordance with Order 1 above; (ii) in relation to those Affected Qantas Employees who have elected not to be reinstated or are not subject of an order for reinstatement, in relation to economic loss occasioned up to the date of these orders and in such further amount as determined by the Court. 7. Orders pursuant to s 545(1) and/or 545(2)(b) of the FW Act that Qantas pay compensation for economic loss to Affected QGS Employees; (i) in relation to those Affected QGS Employees who have elected to be reinstated, up to the date they are reinstated in accordance with Order 4 above; (ii) in relation to those Affected QGS Employees who have elected not to be reinstated or are not subject of an order for reinstatement, in relation to economic loss occasioned up to the date of the orders and in such further amount as determined by the Court. 8. Orders pursuant s 545(1) and/or 545(2)(b) of the FW Act that Qantas pay compensation for non-economic loss to Affected Qantas Employees and Affected QGS Employees as determined by the Court. 9. Orders pursuant to s 546(1) of the FW Act that Qantas pay pecuniary penalties for its contraventions of s 340(1)(b) of the FW Act with any penalties levied to be paid to the applicant pursuant to s 546(3) of the FW Act. 12 Leaving aside the issue of a penal order, a topic to which I will return, the orders sought require the Court to exercise a discretion. But before I get to the discretion, it is worth remarking that although relief is sought under both subsections of s 545 of the Act, this approach is misconceived. 13 Section 545 is in the following terms: 545 Orders that can be made by particular courts Federal Court and Federal Circuit and Family Court of Australia (Division 2) (1) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Note 1: For the court's power to make pecuniary penalty orders, see section 546. Note 2: For limitations on orders in relation to costs, see section 570. Note 3: The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) may grant injunctions in relation to industrial action under subsections 417(3) and 421(3). Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)). (2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following: (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; (b) an order awarding compensation for loss that a person has suffered because of the contravention; (c) an order for reinstatement of a person. 14 What is evident from the text is that an order is made under s 545(1) of the Act. Section 545(2) is not a subsection empowering orders, but identifies, without limitation, non-exclusive examples of the sort of orders that can be made under s 545(1). In this proceeding, all three examples of orders contemplated by the section were initially raised; that is, an injunction was sought, orders were sought seeking statutory compensation, and orders were also sought concerning reinstatement. The injunction was not pressed and the only matters that need to be resolved of a non-penal nature are statutory compensation and reinstatement. 15 As can be seen from its terms and statutory context, s 545 is a remedial, freestanding provision providing the Court with an apparently wide power to make any order it considers appropriate if it is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Of course, there is no dispute that such an order includes either statutory compensation and reinstatement, but it is important to note that the section involves, by the use of the word "may", a discretion: see s 33(2A) of the Acts Interpretation Act 1901 (Cth). 16 Authorities in the industrial area have developed an approach to orders under s 545 which, given the purposes of the statute, provide some guidance as to the way in which the discretion is to be exercised. Although the discretion to make orders is broad, it is not without limits, but there is no need to dwell further on these matters for present purposes. The reason why I stress the fact that what is being sought is a s 545 order which has a particular character (that is, a global reinstatement order), is because of my concern as to whether the discretion to grant such a reinstatement order can be made separately from, and in advance of, consideration of what other specific discretionary remedial orders could be made. 17 When I first turned my mind to the scope of the relief hearing, it seemed the safer course was to deal with the questions of reinstatement, compensation, and pecuniary penalty all at the one time. A penal order could not be made under s 545, as the High Court made plain in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) [2018] HCA 3; (2018) 262 CLR 157 (at 190-191 [103]-[104] per Keane, Nettle and Gordon JJ). Section 546 is the sole repository of the power to make penal orders. Having said that, the questions of whether a penalty is to be imposed, its quantum, and the person by whom any penalty would be paid, might all be rationally affected by whether an order should be made under s 545 for statutory compensation. 18 After some reflection, however, it seems to me that there is a prospect that after hearing full argument, it may be that I could be persuaded to deal with the question as to whether the Union would be entitled to the relief set out at prayers [1]-[5] of its points of claim in advance of determining whether it is appropriate to make any orders for compensation, or in dealing with the issue of penalty. This is because, as senior counsel for the Union agreed during oral submissions, the issues of reinstatement and statutory compensation in this case are quite separate. The orders sought in prayers [1]-[5] are distinct from the orders sought in prayers [6]-[8]. The latter prayers for compensatory relief take, as their point of departure, the fact that the Union has failed to obtain the "global" reinstatement orders sought. 19 Not without some hesitation, I have reached the view that I can look at the relevant counterfactual (or, perhaps more accurately, the alternative) to an order for "global" reinstatement at a level of generality. That is, if I do not make a global reinstatement order, I can proceed on the basis that the Union will seek to persuade me that the appropriate remedial response in those circumstances is an order for statutory compensation made on behalf of each of the affected employees. 20 The fixing of any compensatory order is, of course, a necessarily individualistic task. It is unnecessary for me in this judgment to deal with the principled way in which a statutory compensation order would be made, but at least one thing is clear: there must exist an appropriate causal connexion between the contravention proved and the loss claimed, and this causal connexion involves not only an examination of what did happen, but an assessment of what would or might have occurred: see Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 (at [28] per Allsop CJ, Mansfield and Siopis JJ). 21 It seemed to me the appropriate way of approaching the issue of statutory compensation was to identify three "test" cases of affected employees with different characteristics and, in effect, make a determination as to what an appropriate order for statutory compensation would be in the event that I did not make a reinstatement order. This would have the benefit of ensuring that any findings I make relating to statutory compensation do not involve me engaging in an inappropriate hypothetical exercise. It may also provide some guidance to the parties which might inform a settlement discussion or, at least, provide some parameters which would allow the balance of the individual claims of the affected employees to be resolved by employing a pragmatic approach, perhaps by the appointment of a special jury by way of a referee. 22 Given the view I initially held, it was necessary for me to identify when I could first fix a hearing on relief on all issues. Detailed submissions have been filed in relation to this topic. The position of both Qantas and Qantas Ground Services Pty Ltd (QGS), which has now been joined as a second respondent, was that any hearing of the type that I initially contemplated could not occur until the New Year. 23 At [41] of Qantas' submissions, the following was said: A December 2021 listing would be quite impossible. Aside from the timeline for case preparation being far too tight, this would visit intolerable unfairness on the respondents in case preparation given the competing commitments of their counsel in other trials and the business conditions facing the respondents. Senior counsel has a 5 day trial all week commencing 6 December 2021 and junior counsel has trial commitments from 29 November until 15 December 2021. Obviously they require reasonable time to prepare those cases, and to resume preparation of this case. Given those commitments, even a trial commencing on 20 December 2021 would compromise junior counsel's ability to give sufficient and adequate attention to the matter to an extent such that he would likely have to withdraw. To finish the hearing (including submissions) before Christmas would require the hearing to start in the week commencing 13 December 2021, making the unfairness especially acute, as both counsel would likely have to withdraw. There is no realistic advantage in rushing a hearing into December 2021 (as opposed to late January/early February 2022, or even slightly later), as it is highly unlikely to enable a dovetailing of any remedy appeal(s) into the Full Court liability appeal, which has been indicatively listed for the February 2022 sittings. 24 After receipt of these submissions, I then considered whether it was worth revisiting what Perram J identified as the aspect of the case on relief that is required to be determined with celerity, that is, the question of reinstatement. It seemed to me, at least to some extent, that some of the complications that arise in relation to the compensatory claims, such as the submission made by Qantas and QGS that it may seek to lead expert evidence relevant to the future economic loss of the three "test" case employees, and the need to brief experts about factual matters arising from the Union's evidence-in-chief referable to those individuals, will cause some delay, which might be obviated or reduced by a more confined hearing. 25 Further, although the determination of three claims for statutory compensation including quantification would not be particularly complex, it does involve the hearing of three individual claims and is likely to involve significant cross-examination of those claimants and will add to the time that I would require in order to prepare a relief judgment. As noted above (in the extract from the submissions made by Qantas and QGS), the Full Court liability appeal has been indicatively listed for the February 2022 sittings. If I could set a hearing concentrating on the urgent relief, that is, the global reinstatement orders, it may be possible for me to deliver a judgment by Christmas this year. This would allow the disappointed party or parties, subject to the wishes of the Full Court, to take steps to have any application for leave to appeal against either the granting, or the refusal, of the reinstatement orders to be heard at the same time as the liability appeal, thus giving certainty to those affected by the determination of that question as soon as possible. 26 Despite some residual misgivings as to the bifurcation of issues, I have determined that I should separate the urgent issue of reinstatement and seek to have that issue heard as soon as possible. 27 By reason of circumstances unrelated to this matter, I propose to sit in the week commencing 13 December 2021. This week has an attraction for a couple of reasons. It will allow there to be a period between the close of evidence and submissions at the initial trial. More importantly, however, for present purposes, it will allow me to hear the relief hearing on reinstatement and still be able to deliver judgment either at the conclusion of the hearing, or, in any event, prior to Christmas. 28 Having raised this issue with the parties, Qantas continues to oppose any hearing this year and says that I must face up to what it describes as "three realities." 29 The first is the impact of the pandemic, which has two relevant effects: (a) Qantas management, who will be required to give evidence will also be involved in planning the commencement of commercial flights, and will have limited ability to confer with solicitors in the preparation of their evidence; and (b) the continued lockdown restrictions prevent face to face meetings between those witnesses and the solicitors. 30 Secondly, it points to the failure of the Union to make the sort of concessions that I had envisaged in ordering the parties to engage in a process of agreeing on facts. On 8 September 2021, I made the following order: 2. Pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth) (Act) and FCR 1.32: a. on or by 22 September 2021, Qantas and QGS file and serve a document entitled "Notice to Admit Facts" which is to identify, in propositional form, those facts which, if proved, are said to be, by Qantas, relevant considerations in the Court exercising its discretion pursuant to s 545(1) of the Fair Work Act 2009 (Cth) to make the orders sought by the Union as identified in the points of claim document filed at paragraphs 1 to 5. b. By 29 September 2021, the Union file a document entitled "Notice Disputing Facts", which identifies those facts which will be disputed at any hearing on questions of relief (relief hearing), and in preparing such a document, the Union is to have regard to its obligation under s 37M of the Act to facilitate the just resolution of its claims according to law and as quickly, inexpensively and efficiently as possible. 31 The documents filed pursuant to that order are useful. The document filed on behalf of Qantas and QGS identifies, with specificity, the relevant factors they will call in aid against the exercise of the discretion to make a reinstatement order. A number of facts were agreed, however, as is indicated in the footnotes to the notice of dispute, many of the disputed facts are disputed principally because they are not matters within the Union's knowledge. The Union has indicated that it anticipates that some factual disputes may be capable of resolution if Qantas and QGS were to provide the Union with documentary or other material going to the facts asserted. 32 Usefully, in relation to the disputed matters, the Union identified the basis upon which it disputes the matters in the footnotes and I will make orders in due course allowing for a process to take place to facilitate this process to continue under the supervision of a Registrar. Notwithstanding all this, the position of Qantas is that given past history, it is not confident that the Union will make sufficient concessions to obviate the necessity for it to file very extensive evidence. 33 Thirdly, Qantas points to the hearing time of five days as being insufficient, given that there are likely to be six witnesses called, even if the matter was restricted to the issue of reinstatement. There will be two Qantas senior managers called together with a Human Resources manager. The Union has foreshadowed that it intends to call a Union representative and at least two employees going to the impact of the termination of their employment. 34 Although I have no doubt that these submissions are made conscientiously, I think that the difficulties identified are significantly overstated. The relevant factors which could rationally bear upon the discretion seem to me to be fairly clear, and insofar as Qantas is concerned, have been usefully summarised in the amended notice to admit facts. 35 I do consider that there is a real prospect of the parties, who are represented by competent counsel and solicitors, engaging constructively with a Registrar in a conferral process and seeing whether or not admissions could be made if the relevant asserted fact was expressed in a slightly different way, or if further documentary material was provided on an informal basis during the course of the conferral. If all matters not bona fide in dispute can be identified, this will reduce the scope of the evidence that Qantas and QGS need to adduce. 36 Even then, when one looks at the matters that Qantas seek to prove as identified in the amended notice to admit facts, that material which is either disputed (or is likely will remain in dispute) does not seem to me to be of any great complexity. More generally, this is not, by any means, a complex case. Indeed, it has already been made more complicated than it needed to be when it came to liability. I am amply satisfied there is sufficient time between now and December for relevant evidentiary material to be prepared, even in the context of the pandemic. 37 In reaching this conclusion, I am acutely conscious of the strain that working remotely places upon individuals, including practitioners. Having said that, we have all now, alas, had significant experience in cases having to be prepared and run in this suboptimal environment. Even with work being slower than it might otherwise be normally, there is more than adequate time in order to prepare the case on behalf of Qantas and QGS. 38 Mr Dalton QC for Qantas and QGS has commitments until 10 December 2021, but he is free from 13 December 2021 to conduct the hearing. It appears that junior counsel has trial commitments from 29 November until 15 December 2021. I would usually do everything I could to accommodate convenience of counsel, but there are limits. We are here talking about the lives and economic future of a very large number of individuals. If a hearing this year involves junior counsel being required to return his brief (a hardly novel occurrence, at least in my experience), or alternative junior counsel being engaged, then this will simply have to happen. If the latter course was adopted, it is not as if it would take long for a competent junior to get "up to speed". 39 Further, I reject that "[t]here is no realistic advantage in rushing a hearing into December 2021". Apart from the fact that I do not think it is "rushing", there are decided advantages in having this matter heard in December 2021, as opposed to early next year. The first is that identified by Perram J, being there is a real risk that the longer it takes to determine the question of the reinstatement, the more the relief will be imperilled; the second is the continuing uncertainty; and the third is the prospect that if I deliver judgment by Christmas, then any application for appeal against me granting or refusing reinstatement can be heard in February (subject, of course, to the views of the Full Court). 40 Far from there being no realistic advantage, the benefits in proceeding the way proposed are overwhelming, provided it does not cause procedural unfairness. For reasons that I have explained, the suggestion there would be any procedural unfairness occasioned is without substance, and, accordingly, I will make an order that the issue as to whether the Union is entitled to any of the relief identified in the points of claim at prayers [1]-[5] be determined separately and prior to any other claim for relief in the proceeding (reinstatement hearing). 41 I will, however, make this order subject to further order, in case I form the view during the course of the hearing that the benefits of bifurcation did, in fact, prove to be illusory (but hopefully that will not be the case). I will also make orders that, commencing next week, the legal representatives of the parties are to confer under the direction and supervision of a Senior Judicial Registrar of the Court and attempt to agree on, and produce, a document entitled "Agreed Facts", which in narrative form identifies relevant facts in respect of which there is agreement or no contest between the parties. Needless to say, the legal representatives of the parties participating in this conferral are to do so in good faith and consistently with their obligations under Part VB of the Act (including by assisting and facilitating the narrowing of issues by providing informal production of documents requested for a legitimate purpose). 42 The conferral will also deal with a further subject which has been raised during the course of submissions. It is presently unclear to me why any discovery is necessary in order to fairly dispose of the issues relating to relief, except perhaps some very limited targeted discovery. All of these matters can also be discussed during the course of conferral with a Senior Judicial Registrar. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.