Since the late 2011, when the industrial disputes at Qantas
climaxed in the grounding of the fleet and the referral of the
disputes to FWA, the outcome of those disputes have been
essentially under the radar. Qantas can be said to have won the war
by its strategic decision to force the disputes to arbitration by
grounding the fleet, because it has been able to use arbitration to
force the unions to drop some of their positions, particularly
regarding broad structural and future employment issues. It seemed
at the time of the grounding of the fleet that Qantas calculated
that it could gain a livable deal substantially more quickly
through FWA, rather than continuing in a bargaining period war of
attrition with ongoing industrial action.
In doing so, it has essentially confirmed that many of the
matters about which the unions were complaining were indeed matters
of management prerogative and not part of a legitimate agenda for
Even in the case of the pilots, whose industrial action was
limited to occasional announcements and the wearing of red ties,
the courts upheld the legitimacy of that dispute being roped in
with the two disputes (aircraft engineers and baggage handlers) in
featuring more serious industrial action.
The agreements with the baggage handlers and engineers, which
have resulted from the arbitration process, allow Qantas to make
its own decisions about future restructuring of operations. This
includes the locating of work outside Australia, and restructuring
of the workforce within Australia. These are matters of management
prerogative, not matters to be determined by FWA or
straight-jacketed by enterprise agreement terms.
Of course, most employers are not in the position to raise the
stakes as dramatically as Qantas could, to persuade FWA that
substantial damage is being done, or to persuade the Federal
Minister to intervene. Although the Fair Work Act Review
Panel recommended easier access to arbitration, the Federal
Government has not yet acted on the recommendation.
There is, of course, a certain irony in some employers wishing
to take advantage of FWA arbitration powers, since employer
associations and industry organisations have argued long and hard
to be able to deal with disputes themselves, without being forced
to get the umpire's decision. Life is full of ironies, mostly
turning on the imperatives of the immediate situation conflicting
with a principled position.
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guide to the subject matter. Specialist advice should be sought
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