Analysis of the offer
This part of the paper will deal with the many questions that have been asked regarding the offer itself. It will not recommend rejection or acceptance of the offer. Each of us is going to have to make that decision as individuals. What it will do is offer some food for thought when coming to that decision.
It is acknowledged wisdom that in any negotiation, if a deal between the parties is to have any chance of being a satisfactory and lasting solution, then that deal must, as far as possible, satisfy the objectives of all parties to the negotiation. The question that has been asked is, does this offer meet that criterion?
From the company’s point of view, if we were all to accept the offer, then it would most certainly meet their objectives. The various legal actions would be settled for a relatively cheap price and the problem that they have been having in crewing the freighter aircraft would be solved, again at a relatively cheap price. From the company’s perspective, it would seem to be a good deal. On the other hand, however, if only some of us accept the offer, it would not be such a good deal as the court cases will continue on their current course and one of the company’s prime objectives would not be met.
From both the 49ers’ perspective and that of CX pilots as a whole, it can be argued that the offer is not nearly so attractive. Some of you have asked, what about our objectives? As communicated to you in the newsletter of 27th September 2004, two objectives were agreed to by the President prior to entering into negotiations.
1. To ensure that Cathay Pacific pilots can never again be put in the position in which we have found ourselves.
2. To ensure full reinstatement and proper compensation for 49ers who are qualified and wish to return to work for CX and to ensure proper compensation for those who are not now qualified or do not wish to return to work for CX.
As reported to you earlier, at our recent meeting both the President and the Gen Sec stated that neither of these objectives has been met by this offer. On that basis then, this is not a fair deal. Therefore, we should insist in the subsequent negotiations that our objectives as well as the company’s are satisfied.
A possible counter to that suggestion is that both the company and those from the AOA who have presented the offer to us have stated that this is a “final” offer. The question has been asked by many of you, is this really their best and final offer? In negotiations training we are taught that “best and final offers” are rarely that, especially when they are the first offer to be put on the table. Rather, it is standard negotiating technique used to pressure the other party. Often such a tactic is accompanied by a “deadline” as we have in our current situation. Again, negotiation training teaches us that the best thing to do with deadlines is to ignore them. On balance then, this might be a “final” offer but experience tells us that it is more likely to be a negotiating position.
No doubt those who have come up with this deal believe that it is the best deal that they were able to reach at the present time and that is why they have recommended it to us in its present form despite the fact that it does not satisfy our agreed objectives.
If we were to reject this offer, what guarantees do we have that the company will come back to the table with an improved offer at a later date? The simple answer is that we do not. There are few guarantees in life other than death and taxes. In this situation we are, however, able to make a judgement call based on our knowledge and experience.
We have been in situations similar to this before. In 1999, during the contract negotiations, it was stated by the company very bluntly that there would never be a scope clause in the pilots’ contract and they stonewalled that position. When they finally became convinced of our resolution on the matter, one morning the scope provisions were reapidly agreed to.
When our current President was made Cat D because of his union activities, it was stated categorically by the then DFO that the decision was “set in stone”. Two months later, the decision was effectively reversed.
When a Past President was fired purportedly for questioning the serviceability of an aircraft he had been assigned to fly, that decision was stated to be final and the last word on the matter. Four weeks later he was reinstated in full with no loss of pay or seniority and his record was expunged.
There is no doubt that the company has already shifted its position from as recently as 6 months ago. Then, it was being stated that “the 49ers are history”, that “we have moved on” or words to that effect and refused even to enter into discussions. They have now entered into a first round of negotiations. That is significant movement. It is an acknowledgement by the company that the 49er problem needs to be solved through negotiation. The only question now to be resolved is under what terms?
What pressure or influence can we exert on the company to return to the table with an improved offer? If we examine the company’s strategy with regard to the various legal cases we have been pursuing, it can best be summed up in two words, delay and prevarication. They have consistently sought to avoid having to defend their actions on the substantive issues. Our intelligence strongly tells us consistently that they do not want to find themselves in a position where their actions will be subject to public scrutiny. Even the DFO refers to “adverse
PR” in his recent newsletter. With the latest ruling in our favour in the courts in Australia, this is a probability rather than a possibility. The company know that the timescale is now shortening and this might explain the timing of the current offer.
Despite the fact that the actual financial legal remedies available in some of the jurisdictions fall short of the financial offer that is currently on the table, it can be argued that that is neither the whole story nor the sole criterion on which to judge the “leverage” the cases provide for us.
No company wants to see its senior executive officers called to the witness stand to account for their actions in open court. No company wants to be found to be in breach of legislation designed to protect its employees. No company wants to be branded as a bad employer. No company wants to have its dirty washing aired in public for all to see. These sorts of factors are not taken into account by lawyers when giving legal advice. They are nonetheless significant factors to be taken into account when making our judgement call on whether to accept the offer currently on the table or to continue to sue for an improved offer.
The available legal remedies are only part of the story, not the whole story. Whilst the law may not provide specific remedies for the factors mentioned above, an employer that has acted improperly with often go over and above the legal remedies in order to protect its reputation and good standing.
What of the terms of the current offer itself?
For those of us who cannot or do not wish to return to employment with the company, the matter is a relatively easy one for us to decide. Is the money on offer adequate to compensate us for the damage done to our careers? Is it an amount that we can live with to make the whole sorry mess go away and get on with our lives? Is it an amount that our individual financial circumstances will permit us to accept? If the answer to those questions is yes and we are not concerned anymore with the principles at stake, then clearly we should accept the offer. If, on the other hand, the answer to those questions is no, then in making our decision we first have to decide whether or not we believe that a better offer is likely to be on the table at a later date and then how we would get to an improved offer.
For those who are considering the offer of employment, there are a number of factors to consider, both upside and downside. It is an offer to apply for employment. It is an opportunity potentially to get back on the flight deck. It is an offer potentially to re-enter a career. It is not an offer of re-instatement. It is not an offer of re-employment in your old job. It is not even an offer of employment as there is no guarantee that you will be successful in the selection process. Put simply, it is just an offer of a job interview that might be available to any other pilot worldwide. Also, the employment contract would still include clause 35.3.
Again, we have seen this situation before. When the Classic freighters were sent to ASL, all of the “contract” Flight Engineers, some of whom had been with the company for over 7 years, had their contracts terminated. They were then invited to apply for positions in ASL; effectively to apply for their own jobs back albeit under a different name. The interview process was then used, in the words of one manager at the time, “to weed out those who were considered undesirable.” Some of these men who had years of loyal service with the company were told that they had failed the interview and were not offered employment.
In deciding to drop your legal action in full and final settlement and in return for an opportunity to apply for a new job, you may wish to consider whether or not history might repeat itself. If you are considering accepting the offer purely because it means getting back to flying, you should consider the possibility that you may end up with 10 months pay, no flying job or legal justice and be prepared to accept that result.
One other factor that you might want to consider is how it would look to a potential future employer if you were to fail the psychological evaluation process that you would be required to undertake. In certain jurisdictions, you would be required by law to disclose that information as part of your job application. If you did not disclose that fact and it came to light at a later date, you could be subject to summary dismissal.
We have also received independent advice that, should you be considering accepting the offer to apply for employment, it would be prudent to first ensure that you have a valid Hong Kong Class 1 medical certificate prior to undertaking the selection process.
This paper will not analyse the terms of the actual employment contract itself. You can all read them for yourselves and draw your own conclusions. There are issues regarding compensation, salary, seniority, probation, career progression, staff travel and so on that each individual must consider as to whether or not he finds them acceptable according to his own circumstances.
Amongst the most important factors to be considered is that this offer does not address the original purported dismissals. It is fundamentally important, especially if the employment procedure is even to be considered, that the events of 9th July 2001 first be declared null and void by the company and the so-called “dismissals” entirely retracted. It can be very strongly argued that anything less places the future careers of all 49ers in permanent jeopardy.
In summary, it is not the purpose of this paper to recommend rejection or otherwise of the offer currently on the table. Rather it is intended to provide some advice and observations for your consideration when making your decision.
No doubt some of the issues raised herein will generate debate amongst our group. That is a good and healthy thing. In engaging each other in debate, however, let us all remember that everyone is entitled to his own opinion and despite the fact that emotions may be running high, let us keep the debate on a civil level.
Borrowed from a 44er on Cprune.