Letter from a 49er
Interesting reading.
Dear fellow Member,
There is an issue upon us and I would like to add my voice to the debate that from what I have seen has been thus far somewhat starved of real information. Those of you that know me are aware of my belief in vigorous debate and the importance of the transparent function of our union.
Those of you who do not know me will wonder about my background. I joined our union shortly after being employed by Cathay in late 1995 and have been a Member in good standing ever since. I became a General Committee Member of our union in 1999 and a Principal Officer later that year. I have also served as a Rostering Practises negotiator and Vice-President Professional.
On 9th July 2001 I was purportedly terminated and became a 49er. The sum total of the evidence provided by the Defendant in my case to explain why I was terminated is the phrase “generally uncooperative”. I do not believe that I will see the inside of a court room to test this bizarre evidence and nor does my lawyer – it is important that you know that does not bother me.
My words here are my own and I do not assert to represent the views of other 49ers. Please feel free to pass on this letter to fellow Members if you feel that it may be useful.
What does the General Committee say?
The ‘49er offer’ negotiations between the General Committee (GC) and management were conducted in secret and as a consequence there was no consultation between the GC and the 49ers or their nominated 49er Legal Team. This is unfortunate as it would seem an important omission when attempting to negotiate a resolution on their behalf. Consultation certainly may have avoided the feeling of isolation from the GC that many 49ers have recently voiced.
The GC has stated that it is their opinion that this is the “final offer”.
The GC has stated that their decision is based on financial aspects and that the Membership has done enough. The GC would like us all to move forward. 49ers have witnessed the General Secretary suggesting to Members that the financial liability to our union is HKD$20M. This dire assertion is at best a misunderstanding on behalf of the General Secretary and requires further analysis. Certainly those whose task it has been to assess these things for 3 ½ years on behalf of our union do not agree this is an opinion that would survive scrutiny.
It appears to be a strong possibility that certain assumptions driving GC policy at the moment require further qualified input. Transparency is always a good thing for a union and I submit that in playing out any possible 49er resolution our union needs to be sure that it is getting it right. That will need a little more time than we have all been given.
What does the Company say?
The DFO has released a statement on the 49er offer that does not appear to have been recognised for some of the things that it has said. There is a statement that a pot of money is being given to the GC and they alone have discretion as to how it is used. This money apparently equates to what management expect to expend on their lawyers getting to court. Clearly this is a win-win-win situation for management.
Management will in one stroke hand the responsibility and liability for the political issue of the 49er resolution to the GC. Management, and the GC, require the 49ers to unilaterally withdraw their lawsuits and decide to do that without having any protection whatsoever. Once withdrawn these cases are not able to be resuscitated and the GC will have cut-off financial support. Remember this is supposed to be the first step in the process and for some reason the 49er is expected to take all the risk.
While considering such a risky decision, the latest rumour doing the rounds has the DFO now saying only 6 or 7 49ers will be offered jobs. Rumour is exactly that however we are all aware of the DFO’s ability at projecting his message and it is often the case that he is accurately quoted – if only because he works at it.
What is the ‘offer’?
This is not completely clear to many, if any, of the 49ers. Judging by the mixed messages coming from various GC Members it does not appear to be completely clear to them either. What is clear is that this is not a ‘settlement offer’ as many have presumed it to be. What we have thus far is little more than a side negotiation between the Defendant and a third party – in this case the AOA President. This is important to note because the deal has been represented as, and appears to be assumed to be, something quite different. This is NOT a ‘settlement’ offer in its current form.
There are 2 ways that a Plaintiff can shut down a case such as ours. First option is the Plaintiff decides not to proceed with the case and the lawsuit is withdrawn. This option effectively means that the case is dead and would be almost impossible to resuscitate. It also does not require any input to the process from the Defendant.
The second option is that the Plaintiff and the Defendant, usually via their respective legal counsel, agree to an ‘out of Court settlement’. This form of settlement is binding on both parties and the agreement formalising the settlement is to be "entered into Court". Any failure to observe the terms and agreements by either party would be actionable under the law.
Right now we have no formal offer from the Defendant’s lawyers. We are therefore not in negotiation with the Defendant – only the President is. This means if we were to proceed with this current offer it would require us as Plaintiffs to withdraw our lawsuits unilaterally based on assurances made to a third party by the Defendant – this is the first option scenario given above.
Basically management has said to our President, if you can persuade the 49ers to unilaterally drop their lawsuits against us as a first step, we’ll interview the ones that want a job and give you a pot of money. It’ll be at our sole discretion whether we take any and it is at your sole discretion what you do with that pot of money.
Several other issues appear to be unfinished in the current offer such as Travel and Accommodation benefits - which are currently said to be non-existent. The General Secretary has recently stated that the GC is still sorting these issues out with management. To some this indicates that the negotiation is ongoing and that the “final offer” is in fact more ‘in play’ than represented to us 49ers. Of course this only adds to the confusion and anxiety when making this critical decision.
As another example of the apparent incompleteness of the offer, an issue apparently not fully considered by the GC is the implication that there are no freighter slots available in Australia. Most of the Australian 49ers are not able to domicile in Europe or NAM so that leaves HK. As a Year 1 Freighter F/O flying an Australian Based roster out of HK, therefore liable for either or both HK and Australian Tax and with benefits such as Travel and Accommodation not available, the net pay is likely zero. A returning 49er with a family could not afford to have his family in HK or commute. It gives rise to the growing impression that the re-employment aspect of the offer is not serious.
Put simply, the 49ers have received newsletters about a deal from the GC however at the time of writing we have no formal offer to consider. We have more questions than answers. Creating further angst is the fact that at a meeting especially held for the 49ers to meet with the GC and discuss the ‘offer’, the General Secretary prohibited the GC Member present from answering questions from the 49ers on five occasions. To summarise, the 49ers have no formal offer in writing to give to their lawyers and get advice, important elements of the ‘final offer’ are still in negotiation and important questions are not allowed to be answered by their GC.
Most importantly, this is far from a true offer to settle out of court. It is an attempt by the Defendant to get the GC to get the 49ers to unilaterally withdraw their lawsuits.
The timing, the Deadline and selling the unsaleable offer
Given that this issue has gone for over 3 ½ yrs now; why is there now such hurry? Why over Christmas/NY and such a short deadline. Given the ongoing confusion and continued requirement for clarification of important elements of the apparent deal it appears to be premature to go public until the ‘offer’ is thoroughly understood. The normal custom and practise in our Association is that our Membership is not asked to consider such important issues until that work is done.
Apparently the intended date was to be the Monday before Christmas, then a period which straddles Christmas and New Year, before an irrevocable decision is required from the 49ers by the 20th January an exact month later. Something happened that caused the GC to release the information a few days earlier.
The day before the GC ‘final offer’ newsletters were sent to the 49ers was a complete contrast. We had received uplifting news via our 49er Legal Team of a Judge’s decision in the Sydney case. It was a huge win of that stage of the case finally ending all the possible delays employable by the Defendant. Significantly ‘costs’ were awarded against the Defendant also which means that despite much work done by the 49er lawyers there, Australia has been extraordinarily cheap thus far for us – and extraordinarily expensive for the Defendant. Unfortunately the jubilation over this welcome news was short lived due to the release of the GC newsletter. The GC and the Membership appear mostly unaware of this significant legal news still.
The 49ers are being pressured into making an irreversible decision in minimum time and then the pressure will apparently be on the Membership to cut-off the funding. The General Secretary emphatically stated at a formal meeting of 49ers, whose lawyers were also present, that whatever the collective decision of the 49ers the GC will still recommend that the funding be cut-off from the 49ers. This may explain why the GC did not bother to consult the 49ers beforehand and is apparently not going to be influenced by the 49ers now – they made up their mind a long time ago about this issue.
The management of the big sell by our GC gives the impression of desperation and the timing smacks of cynical and calculated politics. Many 49ers have expressed their disappointment over a feeling of being ‘dead-lined’ by their own GC.
...cont\'d
What the 49er lawyers say
Some recent advice given by the 49er lawyers was based on a ‘hypothetical’ brief given by the GC of what an offer may include. The lawyers have not, in fact, had a formal ‘offer’ to consider and give advice.
Initial drafts using words like ‘good chance’ were toned down to say ‘moderate chance’. When I asked a leading 49er lawyer what would be the highest percentage chance he would ever give in writing his reply was 75% - this did not surprise me as this is the percentage that he put in the advice. He confirmed to me that 75% was as high as any smart lawyer should write and that he still considered our case so strong that he thought that “it would never see the inside of a courtroom”. Meaning that he expected the Defendant to settle when the time suits them.
The lawyers were not aware that the advice sought by and given to the General Secretary was to be kept secret from the 49ers. After all the 49ers are their own clients – the actual Plaintiffs in the action. The lawyers have delivered a robust advice which is quite readable to many who have had the misfortune to require legal advice. It is not surprising that it may require explanation when read by most of us who typically otherwise interpret lawyer-speak quite grimly. The letter from the General Secretary secretly seeking this advice from the 49er’s lawyers does in fact request that the lawyers frame this advice to emphasise a “stark” scenario i.e. worst case. However a few 49er lawyers that I have spoken to personally have expressed their disappointment at being used by the GC as a political tool against their own clients – the 49ers. Further, they have re-confirmed that they do not believe that the Defendant will allow the cases to go to court.
It is still the case that the 49ers, their lawyers, and apparently the GC still do not have an actual formal offer to consider. It is not surprising then that 49er lawyers have stated that they advised the 49ers strongly against signing or agreeing to anything until a formal offer can be considered. They have also stated that they would be pushing to ensure standard protections were included in any potential agreement to protect their clients – the 49ers.
What do we need as an Association?
I suggest that we are being pushed as a Membership into making a decision without the required complete information. The spin being put about regarding the 49ers legals is exactly that – spin. These cases have taken over 3 ½ years to evolve and require the ongoing attention of a Team of motivated and intelligent men in consultation with lawyers from four jurisdictions. It is not possible that the GC understands the 49er legal cases to a satisfactory level because they do not attend the Plaintiff/49er legal Team briefings and they have not consulted with the 49er Legal Team. The advice given in these cases is ‘privileged’ and therefore it necessarily must be protected. It is therefore less likely that the Membership has a superior understanding of the 49er legals than that of the GC. That would be especially difficult as various positive 49er legal results and developments reported to the GC for relay to the Membership as a whole still await dissemination.
Did you know for example that in Australia the Defendant has had to pay our lawyers fees to date due to consistent findings against them by Judges? Did you know that our lawyers in the US – a case which has been stayed rather than lost as some have been led to believe – costs us nothing because the 49ers lawyers there believe in the case so much that they work it pro bono. There are several disingenuous arguments around regarding the past and future 49er legal funding which are inappropriate and confusing. Yet this is one of the current leading arguments why the GC wants the Membership to cut-off the 49er funding.
I suggest that the future of our union is inextricably linked to the 49ers. The 49ers were used as a tool against the Membership and no amount of rationalisation or time passed will change that fact. The Membership will decide it’s principles for itself and that will become the measure of the protection our union can be expected to provide in the future. It is not realistic to expect complete capitulation by management and that we all live happily ever after. Nor is it reasonable to forsake the 49ers in order to declare that a negotiation came to a successful conclusion because a deal was agreed. It has been a painful experience for all involved and that fact alone demands that any resolution sensibly meets important objectives for all parties.
Sometimes we have to do what is right just because it is right. It is right to provide support for the 49ers as it is they who have been bearing the brunt of management’s attack on you and your family’s livelihood. It is right that the 49er issue is pursued legally and for the 49ers to be given the opportunity for legal representation – whether in court or to ensure a safe and sensible settlement. This has been an expectation of our Membership in the past and we have had success in cases not nearly as strong as the 49er cases.
What do the 49ers think?
I can only speak for myself and not the 49ers generally – and I would not presume to do so. In fact no one can do that including the GC, the Legal Team or anyone else. As individuals we have all had our own journeys and have different circumstances. We also have different expectations on what would be an acceptable resolution. I am sure most understand the need to find compromise and move on when it is sensible to do so.
After 3 ½ years many 49ers have exhausted their resources, depleted their retirement planning and their careers are in tatters. It is well within the capacity of management to ensure that the re-employment option is a realistic and workable option, or that the financial settlement allows the 49er to move forward without bitterness. Management’s objective of having the court cases off their radar screen and the dispute essentially behind them can be met.
A final thought on this point. This is perhaps the biggest issue our union has had to face. We of all employee groups understand that there is good reason to have union protection in Hong Kong. There is no urgency to force an error on this important issue as there are no large expenditures in Court or other dramatic events in the next couple of months. We are however getting closer to the end game from a legal point of view and our airline needs to prepare itself for the next busy era. The 49ers and their lawyers can handle their own negotiations to settle out these cases. I propose that we allow that.
What can you do?
This is an important issue and not one that you should take lightly. No other issue in the history of our union has needed your attention more as it will decide the future of our union’s integrity. I ask you to look deeper into this issue and apply your values based on a fully informed understanding.
To ensure a full understanding we Members must drive the debate and we must dictate to our GC what information we require and what time frame is acceptable to us. Otherwise how will they know? This may be one of those issues – and there have been plenty over the years - when the Membership saves the GC from itself.
In the ideal world for the 49ers the Membership would direct the GC to allow the 49ers to communicate directly with the Membership what their thinking is – without editorial interference. The Membership would direct the GC to continue to support the 49ers in their time of need for legal representation. I also suggest that we each contact the GC and inform them of our expectation that the various deadlines and EGM Motions be delayed until the issue has enjoyed sufficient scrutiny.
Please know that we 49ers are grateful for your support to get us this far. We are now within reach of the legal leverage that we have all worked so hard to gain. There is no reason to allow this approaching evolution to be denied to the 49ers and the Membership. We 49ers have managed to get ourselves this far because we have faith in the process and in you our fellow Members. We would like the opportunity to see this through and we ask you for your continued support.
Thank you.