Government shouldn't be taking sides on Qantas

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In 2001, when Ansett was placed into administration and the entire fleet subsequently grounded, I spent weeks working around the clock to help get the airline flying again and preserve as many jobs as possible.

I was a lawyer for some of the key unions involved and one of our first tasks was to help install an administrator that would get the planes back in the air. It was widely accepted that grounding the planes was a very bad business move, as goodwill and brand image can be irreparably damaged.

The exigencies of Ansett, though, saw decisions made where an airline was near insolvent. I never thought I'd see a profitable airline ground its entire fleet as an industrial tactic, nor see a Labor government step in so willingly to complete the second act of a well thought out industrial strategy.

Industrial disputes cannot last forever. There does come a time when government should step in and intervene. And when an airline chief grounds the fleet of a national carrier as an industrial tactic, that time has come. There can be no qualms with the government approaching Fair Work Australia to help resolve the current Qantas dispute.

But while the differences in the various ways a government can get involved may seem technical to an outsider, they make a world of difference to the participants and to the outcome.

The Fair Work Act gives employees and their organizations legal rights to take industrial action. Those rights are not unlimited: the action must meet certain tests to be 'protected'. But even too much of this protected action can bring an end to the protection, which is why many unions will often do things that will not bring a business to halt, like the pilots at Qantas who wore red ties and made announcements over the PA.

This kind of low-level action is designed to pressure the other side to reach an outcome but prevent the matter from attracting the sanction of the law. Unless one party oversteps this limit, then the other party cannot go to Fair Work Australia and ask FWA to resolve the dispute. Keep bargaining, FWA will say. The legislation is based on parties reaching agreement amongst themselves and FWA will only arbitrate in exceptional circumstances.

Ever since John Howard's WorkChoices, the spirit of which still lives in the current legislation, many unions have sought to bargain for an outcome and avoid arbitration. Why? Because the outcomes you're likely to get in an arbitration are widely thought to be less than what you might get in bargaining. Especially over matters that impinge on managerial prerogative. Like job security clauses, a key claim of the unions in the Qantas dispute, because they are concerned about 'offshoring' and contracting out of their work.

Qantas clearly didn't think the unions had done anything unlawful, because it didn't apply to FWA to remove the unions' protection. Something else would be needed if Qantas wanted the dispute to be resolved by FWA. Something like the grounding of an airline.

Qantas' decision to ground the fleet forced the government's hand.  The government now effectively had four choices. It could seek to terminate Qantas' action only. It could seek to terminate all parties' action, even the pilots who'd done nothing more than hangs their clothes and make announcements. Or they could seek to suspend industrial action and force the parties back to the bargaining table. Or, lastly, they could have just demanded FWA roll up its hands and conduct serious negotiations.

The government took the second option when they should have taken the third (or the fourth, though the government clearly thought things had gone too far for that). Why? By terminating industrial action, the parties are put on a conveyor belt to arbitration.

However, if action is suspended (and not terminated) the industrial action still stops and the planes start flying again and negotiations can take place, including under the auspices of Fair Work Australia. Neither side is advantaged and there is no looming threat of arbitration, but industrial peace continues.

Qantas is publicly and before FWA calling for action to be terminated, not suspended. Qantas knows this a sure route to arbitration, where they will chance their arm on the issue of job security.

If it felt so strongly that things had become intolerable, the Government should have sought a suspension of industrial action. And it should have entered the negotiating fray itself, helping bang heads together.

As it is, a Labor government has tipped its hand and sided with Qantas. Whatever Fair Work Australia decides, Qantas now knows the government will help it get to arbitration.

Had the unions grounded the airline, all hell would have broken loose and they wouldn't have been rewarded. As it is, it was Qantas who made the biggest threat and they're now just where they want to be.

The issues surrounding Qantas are complex. It is competing with government owned and subsidised international airlines in a way that may not be sustainable. Employees are also legitimately concerned about job security.

A Labor Government should be helping reach a negotiated outcome by supporting the whole of the airline, management and employees, with an eye to the country's long-term interests. The government should not be siding with whoever is prepared to make the biggest threat.