Payouts for illegally fired Qantas workers could be linked to whether they looked for another job

Payouts for workers unlawfully fired by Qantas during the COVID-19 pandemic could be linked to whether they looked for other employment or whether the airline is hit with a civil penalty.

The Transport Workers' Union has sued Qantas in the Federal Court after almost 1700 workers were retrenched and then outsourced in early 2020 as the pandemic first took grip over Australia.

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.

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After these findings were unsuccessfully appealed by Qantas to both the Full Court and the High Court, the case returned to the Federal Court for further hearings over compensation for sacked employees.

The union is also seeking penalties against the national airline.

Justice Lee is considering the test cases of three workers fired by Qantas to determine how much, if any, compensation is payable.

As the hearing continued today, the judge questioned whether any payout should be made at all to workers who had not taken reasonable steps to find other employment.

"(If) there was a job on offer and they said 'well I'm not interested', where do we go?" he asked.

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Union barrister Mark Gibian SC said the employee still suffered some financial loss and it would be up to the court to determine the appropriate payout.

Justice Lee also asked whether the amount he could order the airline to pay in pecuniary penalties would affect the compensation paid to staff.

He argued that this would prevent employees from receiving an amount worth more than the loss they had suffered.

Gibian disagreed with that approach.

"It would be denying the individual who has in fact suffered loss a compensatory order," he said.

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"No, it would be denying them an inappropriate order in those circumstances," the judge replied.

Justice Lee also allowed Qantas to expand its case aimed at limiting the total compensation payable to affected workers.

The airline now says that if the staff were not retrenched in early 2020, they would have been laid off either in November 2020 or August 2021.

In December 2021, Justice Lee rejected an application by the TWU to have the workers reinstated at Qantas after finding that proposal was impractical.

The hearing continues.

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