Qantas Airways Limited (Qantas)

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Qantas Airways Ltd (Qantas) in relation to Qantas’ admitted contraventions of ss 18, 29(1)(b), 29(1)(g) and 34 of the Australian Consumer Law (ACL), being Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA).

Court proceedings and admissions

The ACCC commenced proceedings against Qantas on 31 August 2023 in the Federal Court of Australia in Proceedings VID685/2023 (Proceedings). In the Proceedings, the ACCC alleged that Qantas engaged in false, misleading or deceptive conduct in contravention of sections 18, 29(1)(b), 29(1)(g) and 34 of the ACL, by offering for sale, and selling, tickets on flights which it had already cancelled, and continuing to display flight information on the “Manage Booking” page to consumers who held tickets for cancelled flights after Qantas had cancelled those flights.

Qantas admits that, between 21 May 2021 and 26 August 2023, it:

1. offered tickets for sale on each of the flights listed in Confidential Schedule 1, scheduled to depart between 1 May 2022 and 10 May 2024, to the public for 2 or more days after Qantas had made a decision to cancel the flight, and Qantas sold tickets to consumers on some of those flights (the Continued Sale Conduct); and
2. continued to display flight details for each of the flights listed in Confidential Schedule 2, scheduled to depart between 1 May 2022 and 1 May 2024, on the ‘Manage Booking’ page of consumers that had purchased tickets or made bookings for those flights for 2 or more days after Qantas had made a decision to cancel the flight with no indication that the flight had been cancelled (the Delayed Notification Conduct).

By engaging in the Continued Sale Conduct, Qantas, in trade or commerce, represented to consumers that:

1. the relevant flights with the corresponding stated flight number and scheduled date and time were still available (Scheduled Flight Representations); and
2. it would use reasonable endeavours to operate the relevant flights at the scheduled date and time (Reasonable Endeavours Representations).

By engaging in the Delayed Notification Conduct, Qantas, in trade or commerce, represented to consumers that:

1. the relevant flight with the stated flight number and scheduled date and time displayed on the ‘Manage Booking’ page was unchanged (Flight Unchanged Representations); and
2. it would use reasonable endeavours to operate the flight displayed on the ‘Manage Booking’ page at the scheduled date and time (Manage Booking Representations).

The Scheduled Flight Representations and the Flight Unchanged Representations were false and misleading in respect of each of the relevant flights because, at the time the Representations were made, there was no longer a flight with the stated flight number and scheduled date and time because Qantas had already decided to cancel it.

The Reasonable Endeavours Representations and the Manage Booking Representations were false and misleading in respect of each of the relevant flights because Qantas did not have reasonable grounds for making the representation because Qantas had already decided to cancel the flight.

By making the Scheduled Flight Representations and the Reasonable Endeavours Representations, Qantas contravened sections 18(1), 29(1)(b), 29(1)(g) and 34 of the ACL.

By making the Flight Unchanged Representations and the Manage Booking Representations, Qantas contravened sections 18(1), 29(1)(b) and 29(1)(g) of the ACL.

Agreed resolution

Qantas and the ACCC have agreed to seek a resolution of the Proceedings with Qantas making the admissions outlined above. Qantas and the ACCC will jointly seek relief orders from the Court in connection with the Proceedings, including declarations, pecuniary penalties, and an order that Qantas pay a contribution to the ACCC’s costs.

As part of the resolution of the Proceedings, Qantas has offered an Undertaking to the ACCC under which Qantas has undertaken to:

• cease the conduct, such that where Qantas decides to cancel a flight on or after the Commencement Date, it must (other than in exceptional circumstances involving events beyond Qantas’ control and for which there was no reasonable opportunity for Qantas to prepare in advance, such as cyber attacks, complete system failure or complete workforce strike):
  • send a communication to all existing ticketholders of the cancellation and updating the Manage Booking Page of all existing ticketholders as soon as practicable, and in any case within 48 hours of the cancellation decision, and
  • cease to offer tickets for sale for that flight as soon as practicable, and in any case within 24 hours of the cancellation decision.
• pay approximately $20 million in compensation to eligible Qantas customers who made a booking for (or were reaccommodated onto) a flight cancelled by Qantas that was scheduled to depart between 1 May 2022 and 10 May 2024, where that flight was left on sale for 2 or more days from the date on which Qantas decided to cancel that flight.
• contact those consumers eligible to receive compensation by 10 July 2024,
• pay compensation to each eligible consumer within 60 days of receiving and accepting that consumer’s payment details and contact details, and
• appoint an independent auditor to audit Qantas’ compliance with the undertaking.

The compensation that Qantas will pay to eligible consumers who submit a claim will be:

• for consumers on Australian domestic and Trans-Tasman flights departing Australia: $225, or
• for consumers on international flights (excluding Trans-Tasman flights) departing Australia: $450.