49er NEWSLETTER
Gentlemen
As the April EGM approaches, we find ourselves in a situation that none of could have envisioned 12 months ago. For the last 44 months we have pursued our dual goals of fair and equitable treatment for the group of us that were victimised by the management of Cathay Pacific and to ensure that such treatment cannot be meted out to any of our colleagues again. Throughout that time we have had the support of our colleagues in our fight. One of the key weapons that we have employed in that fight is use of the legal process. The road has been hard with our opponents using every means available to them to prevaricate and delay their appearance on the witness stand where they will be required to justify their actions. Despite that, we have remained together as a cohesive group and the end is now in sight.
In Australia, a firm trial date has been set which is now only 11 months away. Between now and then, there is an extensive and definitve timetable that has been set by the court that must be met by our opponents. A significant date is 8th April 2005 by which time the defendants must file their defence on both the substantive and jurisdictional issues. This is the first time that they will be compelled to reveal their justification for the treatment to which they have subjected us. Our lawyers in Australia tell us that we have a very good chance of prevailing there. The remedies available to us under law are also the most favourable in that jurisdiction. The cost estimate from our lawyers for this part of the process is AUD550,000 with 250,000 being the cost of the preparatory process to the end of November and 300,000 for the hearing itself scheduled for 4 weeks commencing on 6th March 2006.
In the UK, we are awaiting the judgement from the Court of Appeal. This judgement will set precedent and form case law. If we are successful, it will mean that all Veta employees based in the UK will enjoy the protection of UK employment legislation. The only further avenue of appeal is to the highest court in the land, the House of Lords. The cost estimate from our lawyers is that a further appeal to the Lords would cost GBP45,000 to 60,000 depending on how many barristers we employ.
Until recently, this process has been managed by your Legal Liaison Team (LLT) working in conjunction with the General Committee of our Association and our legal advisers. This process worked well for 3 years.
Towards the end of last year, the President entered into negotiations with a view to finding a resolution to the situation. Some of our group did not wish him to pursue such a path at that time and informed him accordingly. Prior to entering negotiations, he agreed certain objectives namely:
To ensure that Cathay Pacific pilots can never again be put in the position in which we have found ourselves.
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.
These were communicated to you in a newsletter dated 14th October 2004. Nothing further was then heard until the announcement was made of “the offer” on 16th December. This was accompanied by “advice” from our various legal representatives by way of answers to certain questions that had been posed to them by the General Secretary. This was the first that your LLT had heard of this and took place in deliberate secrecy behind our backs. Subsequent to this, the General Secretary initially refused to disclose the full text of this “advice” under the cloak of privilege and also attempted to prevent your LLT from obtaining a hard copy of the letter of enquiry. The nature of the questions and the manner in which they were posed resulted in a much more gloomy forecast of the efficacy of our various legal actions than had previously been the case. This was used to support the case for acceptance of “the offer”.
At a meeting on 17th December, both the President and the General Secretary agreed that “the offer” failed to meet the two stated objectives that had previously been agreed. In answer to the question, “What if the membership reject the offer?” the response was received that, “Then we would continue on our current course with the legal actions. Further, the GC would take such a rejection as a positive direction from the Membership to continue on our current course.”
Initially, our leadership put us in a position where we were deadlined and would have to decide on “the offer” before we knew the result of the vote by the Membership. This was seen by many of us as trying to force us into making a career threatening decision with incomplete information being made available to us. After considerable lobbying, the order of events was reversed. In a poll conducted by the Association, the 49ers voted 41 to 4 against accepting the offer.
In the lead up to that poll, a number of 49ers received personal telephone calls in which they were told that they were definitely on the list of those who would be accepted back into CX should they avail themselves of the job application process. At the same time, the spectre of massive financial costs being awarded against us in the event that we should lose was raised. Other spins and sales pitches were used by our leadership in an attempt to persuade us and the Membership into accepting an offer that is wholly inadequate and fails to meet the previously agreed objectives.
In the event, in accordance with the rules of our Association, the resolution to accept “the offer” failed to be carried by the Membership vote.
In accordance with the undertaking given by the President on 17th December, that should have been the end of the matter. However, our leadership has now decided to take a second bite at the cherry and attempt to use the unlikely prospect of massive costs awards as an excuse to levy greatly increased dues on the Membership.
No proper justification for such increases has been provided. Certain qualified individuals who have analysed the Association’s finances are unable to agree with the Committee’s assessment. Initially these individuals were denied access to our Association’s accounts. Our leadership has decided to depart from a budgeting strategy that has carried us through more than 3 years and now to budget for a worst case catastrophic scenario as a justification for their latest actions.
They have also stated that the GC could “probably” be held personally responsible for those costs. At a meeting with our lawyers in HKG with the General Secretary present held at the beginning of March, a question was posed regarding possible liabilty for costs of our Association, the GC and/or the Membership as a whole. The response was received that, “It is exceedingly unlikely that either the AOA or individual GC members could be held liable for any costs award made against the plaintiffs.” This advice was confirmed in writing on 10th March. Thus, the assertion made previously was simply not true.
Much has also been made of the “paid into court” scenario increasing our costs risk exposure. No such action has been taken by the defendants. Under the terms of “the offer”, each party would bear its own legal costs. In other words, none of our costs to date, other than those already received in Australia, would be recoverable. If we pursue our current course and are successful, then much of these could be recovered irrespective of whether or not an offer is paid into court at a later date.
In an attempt to assist with the potential financial crisis as being painted by our leadership, some 49ers have been looking for sources outside of our Membership to provide supplementary funding. One such possible avenue was mooted to the GC in a letter dated 10th March. At a membership meeting held on 11th March, before any formal response or enquiry was received to that letter, the President described the initiative as a “hollow delaying tactic”.
The IFALPA Annual Conference takes place this week. It was intended that a former President of our Association would attend and use the opportunity to lobby other fellow Member Associations for financial assistance should it be required. Our leadership took active steps to have him barred from attending the conference even in the capacity of observer. Why would our leadership do such a thing? If there truly does exist a potential financial crisis, should we not be pursuing every available source for supplementary funding rather than just attempting to tax our own Membership? Why actively thwart others who are trying to provide alternative solutions?
Rather than raise subscriptions, an alternative of placing a cap on the amount of funding assistance supplied by the Membership has been suggested with our own group being responsible for finding any shortfall in requirements from other sources. Apparently, this solution is not considered to be acceptable. Why not?
Also, why the hurry? The unlikely doomsday scenario of losing multiple appeals in multiple jurisdictions that is being painted is just that; unlikely. On the one hand we are being told by our leadership that results from the legal process are too far in the future to bring any immediate pressure to bear on the defendants yet, at the same time, so close that they must be funded now. There exists ample time to investigate other sources of funding should it become necessary. This is all being done with indecent haste but for what reason?
One possible conclusion is that our current leadership is hell bent on railroading through an offer that is wholly unacceptable to the vast majority of our group before the end of its term of tenure. The terms of “the offer” would effectively preclude any future GC from representing or supporting the 49ers in pursuit of our objectives. One can only speculate on the reasons for adopting such a course of action.
The result of this turn of events is that, if we wish to continue to pursue our stated objectives, then we must be prepared to act on our own behalf in spite of the leadership of our Association. Should the Membership vote against the subscription increases proposed at the EGM and vote in favour of accepting “the offer” at the second time around, then we must be prepared to deal with that situation.
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To the end, the following actions have been taken.
In accordance with the Association Rules, a petition has been presented to the GC to have the EGM postponed in order that a sub-committee can be formed to properly analyse the financial position and construct a realistic business plan and cash flow. The Labour Department has been briefed and is taking an active interest in the situation.
A supplementary income stream has been identified from a sponsor in HKG to be used to assist the 49ers in their legal costs. This funding would be in the form of a loan repayable in part or in whole only in the event that costs are awarded to us. This fund will be managed and administered by the 49ers themselves in conjunction with the sponsor. For business reasons, the sponsor wishes to remain anonymous.
An alternative union is being set up in HKG. Initially, its main objective will be to support those 49ers who wish to continue to pursue our stated objectives. We have received many calls from Members of the AOA who have stated that, should our funding be removed by the current leadership, they will either leave the AOA and/or pay their subscriptions directly to the 49ers. This union will not be bound by the terms of “the offer” which, should it be accepted by our current leadership, would remove the right to legal recourse in the event of contractual dispute and bar the AOA from providing assistance to such members, either financial or otherwise.
We will continue to focus on our legal actions with emphasis being placed initially on those in Australia & the UK followed by HKG.
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Gentlemen, it is likely that each of us is going to be faced with making a personal decision by the middle of May. I am aware that many of you are reliant on the subsistence provided by our colleagues to keep your heads above water pending a properly negotiated settlement that meets our objectives. Despite claims to be merely wanting to maintain the status quo, the current leadership of our Association has chosen to put that in jeopardy as well as a means of coercing you into taking “the offer”.
We are currently unable to make any commitment on continued subsistence from other sources although it is planned to set up a benevolent fund. However, there is no guaranteed income stream for this purpose that has been identified as yet. What we can provide is alternate legal funding assistance.
Only each of us individually can decide what to do under the current circumstances. For those who wish to continue with our current strategy, the vehicle is in place for you to do so. For those who feel that they can no longer continue down this path, for whatever reasons, then that is your choice.
Bear in mind, however, that if you accept “the offer” as it stands, you will forfeit all right to any improved offer that is negotiated at a later date. Also, if your sole reason for accepting “the offer” is to avail yourself of the job application process, be aware that, should you be unsuccessful in that application, all you will receive is a lump sum payment that goes nowhere near addressing the loss that you have suffered. Your reputation will not have been restored and your career prospects will remain poor. In fact it could be argued that they will have been damaged further.
In our current situation, the optimum result that we could hope for at the forthcoming EGM, if it is held as proposed by our current leadership, is that the Membership votes in favour of the subscription increases and against acceptance of “the offer”. Even if the Membership votes against the subscription increases then, irrspective of the way in which the resolutions have been worded, if we believe that our current path is the way to go, we should urge the Membership to continue to vote against resolution 4, acceptance of the offer, and use all available communication channels to urge our colleagues to do so.
The fact is that “the offer” does not meet our objectives and is not acceptable to the majority of us. 41 of our group have already stated that clearly. Irrespective of the increased pressure that is being applied to our group and the Membership as a whole by our current leadership, that situation has not changed.
5th April 2005