Think it would depend on the company setup and who is deemed the employer.
Are the pilots employed by a NZ company or the Australian company.
In
other words is the employer the same for the NZ and Australian pilots?
If the argument was going to hold up, NZALPA would surely have tried it already in New Zealand. Case and point, in the past when one part of the Air New Zealand group has been having industrial action, others elements of the group have covered with the pilot's (even if they sympathise) effectively having no recourse to refuse work if it complies with their own industrial agreement. The fact a combined seniority list exists now would in my opinion only further enhance Virgin's case.
The Trans Tasman element adds something to it but 97(3)(a)(b)(c) reads like this to me with the 'Virgin group' being the employer.
(a) All pilots currently employed by the Virgin group.
(b) Have not been employed principally because they worked there before.
(c) With sufficient notice and complying with all relevant agreements, do VA pilot's have the right to say no?
Of course this would no doubt need to be proven in court and by the time it
is resolved the "foreign" labour will have had the desired effect to the
detriment of the VANZ pilots.
I agree. You would likely find one lawyer who would agree with my take, another who would agree entirely with the counter argument and then who benefits? The QCs just get richer!