Qantas dispute heads to umpire, more pain possible Kelly Burke, Matthew O’Sullivan, Jessica Wright November 22, 2011 [pic] Alan Joyce… “the winners out of this are our customers”. Photo: Dallas Kilponen THE Qantas dispute will drag into next year and there is a threat of further legal action, with negotiations between the three unions and the airline collapsing within hours of the mandated deadline.
Despite a push by the Transport Workers Union to extend the 21-day negotiation period, yesterday afternoon airline management walked away from talks with its ground crew, including baggage handlers and catering staff, less than an hour after doing the same with its long-haul pilots. Late in the afternoon, Qantas and the third union locked in dispute, the Australian Licensed Aircraft Engineers Association, agreed to call it quits and hand the remaining unresolved issues – the use of contractors and hiring staff from outside Australia – over to the industrial relations umpire.
The process of binding arbitration under Fair Work Australia is expected to take months as the umpire gathers evidence and calls for expert witnesses and written submissions. Although unlikely, disruptions to the holiday plans of thousands of Qantas passengers cannot be ruled out, with the TWU to decide on Thursday whether it will mount a legal challenge to Fair Work’s order on October 31 to terminate industrial action. The union has said it will seek a stay if it decides to challenge, which would allow its members to resume work stoppages over the Christmas and New Year period.
The pilots’ union has already begun legal action against Fair Work’s decision with the first directions hearing in the Federal Court set down for December 1. But industrial law experts are skeptical about the likely success of the TWU and pilots’ legal challenges. Emeritus Professor Ron McCallum, from the Sydney Law School, said it was highly unlikely the Federal Court would grant the TWU a stay, which would allow its members to take legal strike action. ‘The [union’s case] would have to successfully argue that Fair Work acted contrary to the law, that they misconstrued their powers … and that will be very hard to do,” he said. The Transport Minister, Anthony Albanese, said there was a lack of goodwill and respect from all sides and the government’s position on union moves to take legal action was iron clad. ”We don’t support people taking legal action. We have an umpire and the umpire should be allowed to make their decision. We’re confident the courts would uphold that,” he said.
The Workplace Relations Minister, Chris Evans, warned that further industrial action by any party would be unlawful. The federal secretary of the TWU, Tony Sheldon, said Qantas had decided to drag its employees through the courts rather than agree to an extension of the conciliation period, where the issue of job security, including the number of contractors Qantas wanted to use, were the sticking points. ”Qantas has not displayed good faith in these negotiations. The TWU wanted a sprint to the finish but Qantas just hopped on the treadmill.
It looked like they were moving but they weren’t going anywhere. ” The vice-president of the Australian and International Pilots Association, Richard Woodward, said negotiations had ended after the two sides failed to agree over the terms for efficiency gains of up to 20 per cent in areas such as pilot rostering. ”Management obviously believes that a decision achieved through arbitration is preferable,” he said. “It is a pity that Qantas as an airline will have to be subjected to this long, drawn-out process when a negotiated outcome was possible. ‘ Qantas’s chief executive, Alan
I agree with those comments made by the Transport Minister, because there appears to have been very minimal progress made during the bargaining process, prior to Fair Work Australia’s (FWA) intervention. Now that the dispute is going to arbitration it will be extremely interesting to see how the term bargaining in good faith will be justified and measured. I believe the term bargaining in good faith to be quite open to disagreement, and it will be rather difficult to prove that any particular party was not acting in good faith. On the FWA website there is a description for good faith bargaining which explains that; the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet: • attending, and participating in, meetings at reasonable times • disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner • responding to proposals made by other bargaining representatives for the agreement in a timely manner • giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals • refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining • recognising and bargaining with the other bargaining representatives for the agreement. The good faith bargaining requirements do not require a bargaining representative to: • make concessions during bargaining for the agreement • reach agreement on the terms that are to be included in the agreement”. (http://www. fwa. gov. au/index. cfm? pagename=agreementsdeterminations#good) I believe that globalization may have played a part in the lack of good faith bargaining in this EBA dispute, because the major sticking point in this dispute is job security for the employees, and Qantas can’t guarantee this whilst pursuing its organizational strategic objectives.
Part of Qantas’s long-term strategic plan is to increasingly use contractual part time employees within Australia, as well as establishing some offshore workforces to fulfill roles such as engineering. Therefore, I think that Qantas had always intended to eventually use FWA to intervene and assist in settling this dispute. I can completely empathize with the employee’s desires to ensure job security into the future, but I can also understand the strategic organizational needs of Qantas management. Some people would argue that globalization is just a convenient management excuse for cost cutting, but there are definitely global pressures in today’s economic environment that make issues such as this extremely delicate to strike a balance. Left-wing critics, however argue that the demon of globalization is just a convenient management excuse for cost-cutting and anti-union behavior designed to decollectivize the workplace and promote market forces. The real problems for Australia’s competitiveness, according to such critics, are not in unproductive workplaces, but in the boardrooms of banks, large corporations and other centers of financial power”. (Stone. R – pg. 541, 2008) Conclusion It is hard to know whether there was good faith bargaining displayed from both Qantas management and the unions during these negotiations, and that is some thing that the FWA tribunal will decide on.
However, I do believe that if there were more consultation, honesty and eventually trust built between both parties, there would have been more progress made before the FWA intervention. I would have also recommended that both parties begin these negotiations by deciding which issues that they agree on going forward, and then start trying to negotiate the more difficult issues. By doing this both parties will slowly build some small amounts of trust, which helps to facilitate more consultation. References Book Stone. J Raymond -Human Resource Management 6th Edition, 2008. John Wiley & Sons Australia, Ltd. Milton, QLD 4064 Online http://www. smh. com. au/business/qantas-dispute-heads-to-umpire-more-pain-possible-20111122-1nrgj. html http://www. fwa. gov. au/index. cfm? pagename=agreementsdeterminations#good