I don’t think it’s quite that simple but happy to be shown how I am wrong;
I don’t think this is for a determination, but for a declaration, correct? With a declaration the commission can
specify a post-declaration negotiation period in an intractable bargaining declaration. This allows the Commission to continue to assist parties to resolve the dispute
If it does get to a Determination then I think it is a risky call for Qantas.
When making an intractable bargaining workplace determination, the Commission must take into account:
- the merits of the case
- the interests of the employers and employees who will be covered by the determination
- the significance of any arrangements or benefits in an enterprise agreement that applies to the employees and employers immediately before the determination is made
- the public interest
- how productivity in the relevant enterprise(s) might be improved
- the reasonableness of the conduct of the bargaining representatives during bargaining
- the extent that bargaining representatives have complied with good faith bargaining requirements, and
- incentives to continue bargaining at a later time.
In my mind the ‘significance of any arrangements or benefits’, and the ‘reasonableness of the conduct ‘ and the ‘ extent that reps have complied with good faith bargaining requirements’ could be viewed in many ways.
For example, how will a Full Bench view the Qantas Groups willingness to allow the contract to languish below the award for so long in light of the recent nationwide sentiment around Qantas and the treatment of employees?
Would a Full Bench consider that the ‘good faith’ requirements have been met? Did the representatives remain communicative and responsive throughout?
It’s a very interesting time politically to be handing any control to the Fair Work Commission.
Can someone confirm that this is just for a declaration and not a determination?