The Fair Work Australia Decision on Qantas: Entrenching the Imbalance of Power between Employees and Employers?

What the paper says

I. INTRODUCTION Although it is unusual to see a case note written on a decision by Fair Work Australia (FWA), the recent decision by FWA on the disputes between Qantas and their employees was unusual as it was initiated by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (the Minister). On 29 October 2011 the Minister made an application to FWA to terminate or suspend industrial action at Qantas Airways Limited (Qantas). (1) The decision is important as it has the potential to provide further encouragement to employers to use the tactic of locking out their employees and forcing them into binding arbitration rather than engaging in good faith bargaining. At the time of the Minister's application three groups of Qantas employees, represented by three unions, had been engaged in protected industrial action against Qantas. The employee groups had 'been negotiating with Qantas for three separate enterprise agreements to apply to pilots on long haul routes, ramp, baggage handling and catering employees and licensed aircraft engineers.' (2) The unions involved were: * The Australian Licensed Aircraft Engineers Association (the Engineers) * The Transport Workers' Union of Australia (TWU) and * The Australian International and Pilots Association (the Pilots). At the time the Minister made the application Qantas had given notice that it proposed to engage in protected industrial action by way of a lockout of its employees. The application made by the Minister was against all of the above parties, that is, the employee organisations and the employer. This case note will consider the protected industrial action taken by the employee groups and intended to be taken by the employer, the government reaction and the decision of FWA. The note will then argue that the impact of the legislation, the Fair Work Act 2009 (Cth), and this decision is to entrench the power imbalance between employers and employees. It is also argued that the decision sends a signal to employers that, if faced by employee industrial action when negotiating workplace enterprise agreements, then the legislation and FWA will support employer protected industrial action. The impact of the legislative right of employers to engage in lockouts of their employees as protected industrial action, supported by this decision, has given employers a de facto power to impose 'unilateral arbitration' on their employees. (3) II. THE EMPLOYEES' PROTECTED INDUSTRIAL ACTION At the time of this decision Qantas was engaged in negotiations for three separate enterprise agreements with three of their employee groups represented by their unions; the Engineers, the TWU and the Pilots. In all cases the negotiations had not progressed to resolution and the workers, through their union representatives, were undertaking protected industrial action. FWA accepted the following evidence from Qantas as to the status of negotiations and subsequent protected industrial actions: 1. The Engineers had been in negotiations with Qantas since August 2010. The negotiations comprised 47 formal bargaining meetings, other meetings and 27 conferences of the parties conducted by Senior Deputy President of FWA, Kaufman and at FWA. (4) The Engineers had undertaken protected industrial action since 12 May 2011. (5) However, this protected action did not commence in any substantive way until 25 August and continued intermittently until 30ctober with the Engineers announcing a suspension of all protected action for three weeks commencing 20 October. (6) The actual industrial action by the Engineers consisted of the following: i. 12 May 2011, a one hour stoppage by a single employee; ii. 25 August 2011, one hour stoppages at the commencement of night shifts each weekday evening at various airports; iii. 3 September 2011, weekend overtime bans; iv. …