Qantas Bargaining Dispute With ALAEA †MyAssignmenthelp.com

Question: Discuss about the Qantas Bargaining Dispute With The Australian Licenced Aircraft Engineers Association. Answer: Introduction An industrial dispute, as the name suggests is a dispute which takes place between the people who form that industry, and includes the disputes which take place between an employer and an employee, or their groups. Qantas is a leading airline company and employees a hundreds of employees. Such a high number of staff increases the chances of an industrial dispute being raised. Qantas had to bear bargaining dispute with ALAEA (Australian Licenced Aircraft Engineers Association), TWU (Transport Workers Union) and AIPA (Australian and International Pilots Association). The industrial dispute related to the company grabbed the attention of the people from across the globe as the airline decided to ground its fleet before the proposed lockout of a huge portion of its workforce (Creedy, 2011a). This led to a contest being made between the job security and the employment flexibility. The Qantas dispute highlighted different aspects of the Fair Work Act, 2009 (Cth) come to play. The support o f managerial prerogative and the endorsement of the tribunal to the strategy of the airline continues to have implications over the workplace regulations in the nation and would continue to do so over a long period of time. In the following parts, this dispute and its end has been discussed. Factual Background The Qantas industrial dispute took place between the airline and three of its unions, i.e., ALAEA, TWU and AIPA. Negotiations for an enterprise agreement were started between August 2010 and May 2011 by Qantas with its three unions (Motro, 2012). In the middle of 2011, the members of AIPA initiated industrial actions against the airline and this included making announcements to the passengers when the long haul flight concluded and wearing of different coloured ties. The ALAEA and TWU members also took a damaging industrial action against the airline and this included stopping the work (Motro, 2012). On October 29th, 2011 Saturday, a notice was given by Qantas to AIPA regarding it will be looking out for such employees who would come under the ambit of the agreements which were being negotiated with the airline and the three unions, and this was scheduled to be effective from October 31st, 2011. The Commonwealth Minister, before the industrial action could actually take place, made an application under the Fair Work Act to the Fair Work Australia regarding an order for terminating or suspending the protected industrial action which was being undertaken between the airline and the three trade unions based on the action which threatened to result in a major damage to the economy of the nation, or to a major part of it (Motro, 2012). It was held by the Fair Work Australia that this protection industrial action being undertaken between the three unions, when considered together, was not very likely to be a threat to the economy of the nation in a significant manner. Though, it was concluded by the Fair Work Australia that in case Qantas decided to respond industrial action, it would definitely be a major threat to the air transport industry and to the tourism industry of the nation and thus, to the industry in Australia, in general (Coorey and O'Sullivan, 2011). And so, the Fair Work Australia exercised its discretion and terminated the industrial action which was taking place between the three unions and Qantas (Motro, 2012). Key Issues The first key issue in this case was regarding the legality of the job security claims of the unions. This claim leads to a debate over the limits with regards to contracting out. Qantas was trying to attain its vision which would be more efficient and leaner in Australian operations, where the key jobs are sent offshore to be performed at lower rates. And this very thing was what the unions wanted to stop. The other aspect of this issue was related to the evolution of matters pertaining formulation. The main issue of this debate stemmed from an uncertainty which has been brewing since more than a century. From the days of Conciliation and Arbitration Act 1904 to the shifts in 1990s, and to the more recent legislations of 2005, there has been a need to satisfy the matters pertaining requirement, which was also highlighted in Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309. Together with the ruling of the quoted case, the unions sought to enter into side agreements/ separate agreements in order to deal with the issues where there was a mutual concern and which could not be a part of any statutory agreement. Amongst the many companies, Qantas was only one company which was ready to go ahead with this strategy. And these unregistered agreements only had validity under thecommon law (Forsyth and Stewart, 2013). The final key issue which was highlighted through the Qantas dispute was the ability of the Fair Work Australia, or as is now known as the Fair Work Commission, to arbitrate upon the results with regards to enterprise bargaining. And also, whether the tests meant for accessing the arbitration were to be taken as too strict. The provisions of this act reflect upon the issues which can be arbitrated by the tribunal, particularly where these are the bargaining disputes and when all of the parties agree to arbitration after the protected industrial action is terminated. When such happens, there is a need to fulfil the good faith bargaining requirements as are set out under section 228 of the Fair Work Act (Riley, 2012). Fair Work Act A key issue in this case was regarding the restrictions on agreement content based on the Fair Work Act (Bernasconi and Firth, 2012). Even though due to continued pressures, the Fair Work Act has seen a number of sections being removed, particularly related to the Work Choices restrictions; though section 172(1) of this act has been retained, but it has been modified a bit. The requirement under this section now relates to the enterprise agreements, which relate to only such issues which pertain to the employment relationships. There still remains a confusion regarding the management by Workplace relations Minister. As per the current provisions, the agreements can be approved by the Fair Work Commission even when they cover non-permitted contents. However, any such clause which deals with such a matter which is authorized by section 172(1) would not be enforceable. In this case, as was found in Electrolux, the attempts by a bargaining representative for proposing the un-allowed term to be included in the agreement would mean that the industrial action undertaken would not be protected. The rationale behind this was that the concerned representative could not be deemed as genuinely attempting to attain an agreement (Forsyth and Stewart, 2013). In the Qantas dispute, there was a recurrent debate regarding the claim of restricting the employer from outsourcing the labour could be deemed as pertain to relationship amidst the employees and the employer, particularly when such employees would have been performing the work otherwise. There was hence a need to draw a distinction between the restricting use of outside labour and on imposing certain conditions on such agreement. The submissions made by Qantas meant that they accepted the claims that were in question and these had been legitimate based on the Fair Work Act. Though, one of the demands of TWU was that the contractors should not make up for more than 20% of the workforce of the airlines (Janda, 2012). And on this basis, the matters pertaining requirement was not fulfilled and this led to the dispute with TWU being resolved with immediate effect. The Full Bench, as it transpired, rejected the claims on the grounds of merits instead of addressing the issue of jurisdictio n. However, it was noteworthy that the airlines did not seek the earlier stage to make this issue as this would have shown that the industrial action undertaken by TWU was unprotected and so, based on section 418 of this act, it was amenable to a stop order by Fair Work Australia. This point could also be made about the demands of ALAEA that Qantas had to build a new maintenance facility in the nation, which more clearly highlights the lack of the requisite connection to the ALAEA members employment relationships (Forsyth and Stewart, 2013). The decision of the Fair Work Australia, to terminate the industrial action present against the airline was completely based on the notion that the lockout which had been proposed by the company threatened the degree of economic harm (Bamber, 2011). This was required to comply with the conditions laid down under section 424 of the Fair Work Act and not about the previous industrial action which was undertaken by its employees. This brought the attention on the lockout fulfilling the employer response action based on section 411 of this act (Tuck, 2011). And if this was not satisfied, did it constitute as a protected industrial action, where the provisions covered under section 424 could be applied (Brown et al, 2014). From the outside, there was a shortfall of proportionality between the industrial action which had been earlier taken by the unions and the complete shutdown of the business of the airline particularly for members of AIPA, the question which the court had to decide was whether this lockout be deemed as organised or engaged in as a response as per the requirement of section 411(a) for the employee action (Sangkuhl, 2011). However, this point was not pressed and the argument was instead over the disproportionate nature of the response of company which warranted the suspension instead of terminating the industrial action against Qantas (Forsyth and Stewart, 2013). This challenge was though, rejected as it was threatening a major economic harm (Petersen, 2011). Also, on the basis of section 413(7), the termination was held valid owing to the undertaken action of Qantas and the lockout was deemed to have satisfied the requirements covered under section 411(a). Every court member took into consideration the evidence which was put forward before the Fair Work Australia supporting the notion that the airline had acted in response to the previous employee action. And it was deemed as ample for this purpose that the lockout had to be causally connected to different industrial actions undertaken by the employee, which included the members of AIPA (Forsyth and Stewart, 2013). There is also a need to contrast the observation regarding Qantass behaviour being opportunistic in nature and that the company did which was the only legal option available to it in the given situation. However, this was far from true. Qantas did had other options which included giving in to the demands related to job security of the unions to be upheld, or to continue enduring the dawn out industrial campaign. Apart from these two options, the company also had the option of relying upon different sections under the Fair Work Act as available options. This included seeking a suspension of the industrial action based on section 425 of this act, which allows the imposition, by the tribunal, to something, which has the effect of a cooling off period, so as to allow the negations to be continued between the disputing parties. There was a need to emphasize upon the legal base for the terminations, which could have resulted from the lockout, along with its threatening effects. They could also have grounded the airline fleet immediately or suspended all commercial operations, which would have resulted in the government intervening in this matter. The only reason, as per the experts, for the airlines to escalate this dispute in such a radical manner was to form a crisis which would result in the dispute being sent by Fair Work Australia to arbitration (Forsyth and Stewart, 2013). This was due to the prospects of bargaining table being a long campaign of damaging slow-bake the industrial action (Creedy, 2011b). Dispute Resolved Each of the unions in this case sought to settle their issues separately. Once the airlines had grounded its entire fleet dramatically on 29th October, 2011, the Fair Work Australia was asked to arbitrate with the parties and if the same was not successful, they had to make their own arrangements in a time period of twenty one days through negotiations (O'Neill, 2011). However, the disputes could not be resolved through negotiations during the twenty one day time period. However, Senior Deputy President of Fair Work Australia, Les Kaufam, led the conciliation between Qantas and ALAEA and an understanding was attained between the two regarding the continuation of the status quo. Even though the job security clause could not be agreed to be changed, the two were successfully able to negotiate on this issue and this meant that Fair Work Australia was not required to arbitrate this dispute any longer (The Conversation, 2011). However, the dispute of Qantas could not be resolved with AIPA and TWU. Fair Work Australia continued to try arbitrating upon this matter. This was to be done in March 2012 for TWU and April 2012 for AIPA (Smith, 2012). With regards to the AIPA and TWU case, the decision was handed down by Full Bench of Fair Work Commission on January 17th, 2013 and the job security and wages claim were rejected, while an agreement was attained to increase the pay from backdate of January 01st, 2012 (Forsyth, 2013). For TWU staff, the Fair Work Commission awarded the ground workers with 3% increase in pay instead of a claim of 5% (The Conversation, 2011). Even though the company got temporary relief from the industrial action, the company has got a momentous task of rebuilding its workforce relations, which have been tarnished due to this long industrial dispute. And even when a this decision had just settled, another action was prepared to be raised against the airline by AIPA in 2014 (CAPA, 2013). Conclusion The industrial dispute which was presented through the Qantas dispute with AIPA, ALAEA and TWU would forever be a part of the industrial dispute history of the nation due to the magnitude and the intricacies of this case. This case saw the negotiations upon a new enterprise bargaining agreement. The lockout which was also at the centre of this dispute was thoroughly evaluated by the Fair Work Commission, along with the different aspects revolving around this dispute. The disputes of this case took a long time to settle and the ones who take interest in matters revolving around industrial relations state that Qantas was the real winner in this dispute, particularly with respect to the AIPA and TWU arbitrations. The legal strategy of the company was to avoid the narrowing of industrial actions of the workers and allowing the actions to take toll for such a precise period of time, which would justify their response to fight back and fight back in an extreme manner, which would result in the government sending the bargaining dispute to arbitration. This was done and the company was able to bank on getting out of the proceedings without the job security claims of union and other than those which they were prepared to offer. Even though the actions of the airline were dispute by certain people, but one cannot deny the victory of Qantas in this case, even when it did cost the company tremendously. References Bamber, G.J. (2011) The Qantas dispute: What next and a recap. [Online] PRI. Available from: https://theconversation.com/the-qantas-dispute-what-next-and-a-recap-4411 [Accessed on: 04/10/17] Bernasconi, R., and Firth, T. (2012) Australia Outcome In The Long-Running Qantas Dispute With The Transport Workers Union. [Online] Conventus Law. Available from: https://www.conventuslaw.com/archive/australia-outcome-in-the-long-running-qantas-dispute-with-the-transport-workers-union/ [Accessed on: 04/10/17] Brown, B.I., Brown, C.J., and Brown, A.M. (2014) Conundrums: The Pernicious Perfidy of Putsch, Pollution and Population. Western Australia: Vivid Publishing. CAPA. (2013) Qantas wins "right to manage the airline" as FWA ends industrial dispute with international pilots. [Online] CAPA. Available from: https://centreforaviation.com/insights/analysis/qantas-wins-right-to-manage-the-airline-as-fwa-ends-industrial-dispute-with-international-pilots-95113 [Accessed on: 04/10/17] Coorey, P., and O'Sullivan, M. (2011) Fair Work ends Qantas industrial dispute. [Online] Traveller. Available from: https://www.traveller.com.au/fair-work-ends-qantas-industrial-dispute-1mqsq [Accessed on: 04/10/17] Creedy, S. 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