While the aviation sector has a long history of large industrial disputes, the introduction of the Fair Work Act (FWA) is the reason for the latest dispute between Qantas and the Australian Licenced Engineers Union, the Transport Workers Union and the Australian and International Pilots Union.
Speaking to Lawyers Weekly about Qantas's controversial decision to ground its domestic and international services, Middletons workplace relations and safety partner Alice DeBoos said that while the FWA is not to blame for the large-scale industrial action which came to a head at the weekend, it was the FWA which enabled the job-security dispute to arise in the first place.
"I don't buy into the argument that this [industrial action] is somehow a reflection of the Fair Work Act. I think the provisions relating to protected industrial action are basically the same as they were under the Howard Government," said DeBoos.
"The industrial action side of things hasn't changed ... Where legitimate criticism of the Fair Work Act comes in ... is that the Fair Work Act enables unions to bargain over these job-security clauses and that's what's different.
"Prior to the Fair Work Act, these types of clauses were not permitted in an enterprise agreement, so you couldn't have this argument."
Questioning Australia's industrial relations system and how such a dispute reached the level it did, People & Culture Strategies managing principal Joydeep Hor said the Fair Work legislation needs to be examined.
"Why did it have to come to what it came to in order for sanity to prevail, and why is the system not allowing for a more constructive approach to the resolution of these matters?" asked Hor, adding that if the laws had the right in-built mechanisms, the dispute would not have caused as much consternation to so many people.
"When it comes to good faith bargaining, which of course was the creation of this legislation - the Fair Work Act - it just seems ironic that in circumstances where, for the first time, there was a mandated obligation on unions, employers and employees to bargain in good faith, you would have thought ... [it] would be less likely to see this kind of outcome."
While describing Qantas's decision to ground its fleet as "extreme" and "very risky", DeBoos said the move constituted a much-needed win for Qantas, represented by Freehills.
"Ultimately, you have to view [the decision] in the wash-up, and that is that they have achieved exactly the result they wanted to achieve. Their gamble - and this was the only way they could achieve an end to the industrial action - has paid off and it has paid off in spades," said DeBoos, adding that the decision of Fair Work Australia has put Qantas in an "incredibly advantageous position".
"The unions, while they may not admit this, will not want Fair Work Australia deciding or arbitrating an outcome, because I find it very difficult to see a circumstance where Fair Work Australia would be allowing in a job-security clause," she said. "The unions will be using these 21 days to salvage the best agreement they can out of Qantas."
With respect to the Government's intervention into the dispute, Hor noted that the timing of such intervention will now come under scrutiny - an issue for which the Prime Minister Julia Gillard is now facing mounting pressure, with calls to introduce laws allowing earlier intervention.
"The questions that will be asked [are] should they have been more empowered early on, is there some alternative model altogether [and], notwithstanding Australia's deep history in confrontational industrial relations, whether there's a need for an alternative approach," said Hor.
- Briana Everett