Victorian Trades Hall Council. The voice of Victorian workers since 1856.

• Inside Trades Hall
•  > Secretary's Report
•  > 2011 Archives

FWA and Qantas Dispute...Questions Remain

30 November 2011

Back at the end of October (week ending of 29-30^th) FWA intervened in the Qantas EBA dispute involving three unions: TWU, Flight Engineers and Pilots. Twenty four hours earlier Qantas management had made public statements saying it intended to ground its fleet of aircraft. The reasoning behind Fair Work Australia’s decision to terminate the union action at Qantas is unclear and, it can be argued, out of step with the Act.

Fair Work Australia terminated the transport, engineers’ and pilots’ unions minor industrial action and the proposed ‘lockout’ (read grounding) by Qantas, using section 424(1) of the Fair Work Act.

This section provides that:

“FWA must make an order suspending or terminating protected industrial action…if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten…to cause significant damage to the Australian economy or an important part of it.”

But in its Qantas decision, Fair Work Australia said that it “is unlikely that the protected industrial action taken by the unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries”.

In contrast FWA said it was Qantas’ lockout that threatened “to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services”. The evidence for this conclusion was not given.

Fair Work Australia then said, again without explaining, that it found that the requirements in s 424(1) were made out. It ordered the protected industrial action of the unions to be terminated immediately.

To make this order, Fair Work Australia had to find that the industrial action threatened to cause significant economic damage. But it found that the action of the unions was not causing significant economic damage to the economy or an important part of it.

Fair Work Australia went so far as to say such a result was unlikely. Yet it made an order terminating the unions’ industrial action. How this was achieved in accordance with s 424(1) is not apparent.

Even if the Qantas grounding did threaten significant damage to the economy, surely that would only have justified an order against Qantas.

It could not have permitted a termination order against the unions on any proper reading of the clause. Thus the decision is not one that accords with s 424.

It is impossible to see how it could have been made under this section. Where have all the IR legal eagles been for since the end of October?

The ACTU came out and supported FWA’s decision on the 31/10/11.

The ACTU placed a lot of emphasis on getting the planes back in the air, claiming the FWA “sheeted home to Alan Joyce full responsibility for the [his] actions which caused massive disruption to the travel plans of thousands of Australians and the economy”.

The ACTU added that “Qantas must negotiate about the legitimate claims over job security and outsourcing unions have been pursuing for 15 months”. Why ‘must’ Qantas negotiate? What did the ACTU know that no one else did?

In fact Joyce went public bragging the dispute was over and everyone could book with his airline “with confidence”. No mention at any stage he was going to negotiate anything with the unions because of the FWA decision!

Regardless Qantas has not been, to date, negotiating in good faith. An arduous process of so called arbitration is flagged to occur for many months in 2012. Thousands of aviation workers will not have a new EBA any time soon.

Progressive changes to the Fair Work Act are needed.