On 18 August 2025, the Federal Court ordered Qantas airlines to pay a $90 million fine for making an unlawful decision to outsource jobs in the midst of the Covid-19 pandemic. This is the largest and most significant contravention of the general protections of the Fair Work Act 2009 (Cth) or its predecessor.
On 30 November 2020, Qantas CEO, Paul Jones, announced Qantas’ decision to outsource 1820 ground handling roles across 10 Australian airports during the Covid-19 pandemic. The decision was implemented over the following 4 months. The decision received widespread backlash at the time and has been through 4 years of litigation since the Transport Workers Union (TWU) first made a general protections (adverse action) claim on behalf of the Qantas employees in 2021.
In July 2021, Justice Lee delivered his decision that Qantas engaged in adverse action by outsourcing 1820 roles because it was done in order to prevent employees from participating in enterprise bargaining or industrial action. Participation in enterprise bargaining and protected industrial action/protected industrial action ballots is a workplace right under the Fair Work Act. An employer must not engage in adverse action against an employee because the employee:
1. has a workplace right; or
2. has, or has not, exercised a workplace right; or
3. proposes or proposes not to exercise a workplace right; or
to prevent an employee from exercising their workplace rights.
“Adverse action” against an employee by an employer is the where the employer:
1. dismisses the employee; or
2. injures the employee in their employment; or
3. alters the position of the employee to the employee’s prejudice; or
4. discriminates between the employee and other employees of the employer.
Justice Lee ruled that, when Qantas made its decision to outsource the ground staff jobs to third-party ground handling companies, as an important component of their risk assessment, its CEO and COO considered that the outsourcing decision should be taken at that particular time to prevent the affected employees from engaging in industrial action or disrupting services in 2021.
The context was that the one of the Qantas enterprise bargaining agreements covering the affected employees was due to expire the month after the outsourcing decision, while the other had already expired. The TWU, on behalf of employees were proposing to start bargaining for a new Qantas Airways Limited enterprise agreement. However, the workers couldn’t take industrial action until their agreement expired on 31 December 2020, 1 month after the outsourcing decision. The second enterprise agreement for Qantas Ground Services Pty Limited (a subsidiary of Qantas Airways Limited) had already expired by that point, so bargaining could technically commence. However, the TWU had not undertaken a protected action ballot yet (which was a requirement before industrial action could commence).
The Court determined that Qantas’ objective was to prevent employees from exercising their workplace rights to participate in enterprise bargaining or engage in protected industrial action or protected action ballots. This was a substantial and operative factor in Qantas’ decision to outsource the ground handling jobs as they feared industrial action would disrupt services in early 2021 when pandemic restrictions on flights eased. The outsourcing decision altered the position of the employees prejudicially as it prevented them from exercising their rights in relation to bargaining and industrial action. Therefore, the decision to outsource was deemed adverse action given it was based substantially on preventing employees from exercising their workplace rights.
The decision was appealed several times, including to the High Court. Ultimately, the appeals were dismissed (including an appeal from the TWU regarding the decision to not reinstate the ground staff who lost their jobs).
Since a contravention of the general protections in the Fair Work Act is a civil penalty, “pecuniary penalties” can be ordered against an employer who breaches the general protections (in addition to the economic and non-economic compensation applicable). The Court can decide who the pecuniary penalties are paid to. In his 18 August 2025 decision, Justice Lee ordered that $50M of the penalty that Qantas has to pay will go to the TWU. Qantas has to pay the balance of the penalty ($40M) to the Court who will hold a further hearing about this part of the fine.
Lessons for Employer
This decision highlights the factors that employers need to consider when making decisions:
1. to dismisses an employee; or
2. which may:
a. injure an employee; or
b. alter their position to the employee’s prejudice; or
c. discriminate between the employee and other employees.
Employers should carefully consider whether an employee has exercised a workplace right, proposes to exercise a right, or whether the employer’s decision would prevent an employee from exercising a right.
At Blandslaw, we have over 30 years of experience identifying early on whether an employer is at risk of breaching the general protections. We can give employers practical steps to prevent making unlawful decisions.
If you’re thinking about making a decision that could affect an employee’s employment, protect yourself from severe fines like Qantas by consulting with our team first.