AIPA vs FWA

[correcting]

Any news on the current federal court proceedings?

[Capt Kremin]

They are happening now. Don't expect a ruling immediately the hearing is over but due to the fast-tracking of the hearing, it would not be too much to hope for an expeditious handing down of the ruling.

[Keg]

Judgement has been reserved. I haven't idea what that means in terms of time frames, etc.

I've spoken to a few experts in the field. None of them give us much hope. The only hope is that these things are yet to be tested and thus the interpretation of them is still a little more open then it would be in a few years time. That may assist us.

For my money, this is one of those shots that you take and if it comes off that's a bonus. If it doesn't, you're no worse off than where you are anyway.

[Iron Bar]

Hopefully a decision inside the next 2 weeks. Kegs appraisal is about right. However a loss for AIPA will set a fairly big legal precedent.

[hotnhigh]

Correct Iron Bar, any major company in Australia that can demonstrate their ability to damage the Australian economy by their own actions, will be able to successfully follow the qantas ir strategy and force closure upon any form of industrial action. Including the wearing of red ties.

[TIMA9X]

However a loss for AIPA will set a fairly big legal precedent. Sure would..... I am no lawyer, but the red ties and PAs didn't strand a single passenger, am I right? To rule against the AIPA appeal suggests that it did in some way or another...:confused: I thought "law" was based on common sense..:ugh:

edited to include video at the time of the grounding and FWA decision... interesting what Abbott says in this clip

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plus Joyce says in this clip "we will help the government" which for me is a bit rich..... We know now that Gillard is going along with Joyce, in my view....

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.

[empire4]

In law there is no such thing as common sense, seems its not so common anymore!

[dr dre]

I've heard a lot of talk that AIPA won't be successful in this case, but can any one who has some knowledge of law explain exactly why? Why the grounding/lockout was a justified reaction to the wearing of ties/making pa's?

[astroboy55]

because whilst we were only wearing ties etc, we had the ability to conduct up to 48 hr stoppages. The fact we didn't/promise we won't is irrelevant. They will look at what we can do. Not what we did.

it pisses me off that the general view is that it was all because of us. They were the ones who took the industrial action that caused intervention...not us.


agree with Kegs comments.....

[Mud Skipper]

Perhaps we should take a leaf out of the Victorian Nurses Union book and take unprotected action if our case fails, ties on boys and girls and get those PAs out.
FWA is a joke if Qantas gets away with this, sure they can stand us down etc and try logging costs but this fight needs to escalate before we are all replaced with Iraqi pilots on 457visas.

[TIMA9X]

Judgement has been reserved.

It appears they are doing this to test to see if their any public reaction brewing,.. get it out, FWA probably fear the public will side with the pilots, it's a simple message,


and

Perhaps we should take a leaf out of the Victorian Nurses Union book and take unprotected action if our case fails, ties on boys and girls and get those PAs out.
FWA is a joke if Qantas gets away with this, sure they can stand us down etc and try logging costs but this fight needs to escalate before we are all replaced with Iraqi pilots on 457visas.

Something that would shoot AJ down in flames, and it will only build up Tiger now they have announced Sydney as a new base in readiness for Scoot... the investors would shiver in the cold if they knew the public were in on what the FWA were "reserving" over.. red ties & PAs didn't strand a single passenger..


background, VIC Nurses clip

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[Tuner 2]

because whilst we were only wearing ties etc, we had the ability to conduct up to 48 hr stoppages. The fact we didn't/promise we won't is irrelevant. They will look at what we can do. Not what we did.


This is not really correct. The appeal is based on several grounds; one being the question of did FWA exceed its jurisdiction in making the order it did, and did it ask itself the correct questions in deciding to terminate all actions.

This leads to the issue of whether the lockout by QF satisfies the definition of employer response action under the legislation and an argument about whether employer response action needs to be 'proprtional' and/or if it can be in response to just bargaining claims or only in response to industrial action, or can it be in response to either.

Then there is the issue of whether or not FWA was obliged to disaggregate the industrial actions of the various parties.

[2Plus]

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[ozbiggles]

I would hold out no hope on this one.
Why?
Because most pilots involved in this one are "fortunate enough to earn over 80K". So therefore probably not Labor voters.
Look at the FWA track record in regards to investigating a particular member of that organisation. In contrast defence is required to generate 6 or more reports in 12 months investigating over 750 cases because the minister says so.
The nurses union on the other hand thumbs its nose at the FWA and all the Law Courts disregarding all orders. Do you think anything will happen to them in response to that from the FWA....time will tell. I bet you if AIPA had disregarded any rulings there would have been no doubt there would have been repercussions.
That quote by the way comes from Julia Gillard on the floor of parliament. So the next time you are enjoying your IRT renewal, just think how fortunate you are to have worked your backside off to earn a living.
To clarify she wasn't talking about pilots she was reffering to anyone earning over 80K who actually pays tax in this country,

[theheadmaster]

There appears to be some gross misunderstanding of the Australian legal system in these posts. The court does not reserve a decision to gauge public opinion. Secondly, this decision is being made by the full bench of the Federal Court. It is not FWA.

The decision is reserved because there are several difficult administrative, constitutional and statutory interpretation law issues to resolve. These issues are accurately described by Tuner 2. The three judges need to consider the aural and written submissions by the various parties and determine how to apply the law. The decisions will then need to be drafted and published. This takes some time.

While the various judges may approach the problem from their own idealogical perspective when putting their mind to the issues, in the end they are assessing the facts, interpreting the law, and then applying the law to that fact situation. Any suggestion that they would be under pressure from the government or the public is misguided.

[TIMA9X]

in the end they are assessing the facts, interpreting the law, and then applying the law to that fact situation. Hmm, common sense suggests the pilots actions didn't strand a passenger, so the law is flawed in this case... the simple fact is, on the day of the lockout (Saturday 29th October) the only action from AIPA was the red ties & PAs... TRANSPORT Minister Anthony Albanese actually said this in parliament the following Tuesday..

It is also my view, both the government & opposition knew that Qantas would possibly opt for the lockout, they both simply didn't believe Joyce would go through with it.. In this clip Gillard demonstrates she didn't understand the legal aspects/ramifications of her own legislation, the FWA act itself....she was very vague indeed....


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This leads to the issue of whether the lockout by QF satisfies the definition of employer response action under the legislation and an argument about whether employer response action needs to be 'proprtional' and/or if it can be in response to just bargaining claims or only in response to industrial action, or can it be in response to either.Clearly, the decision should be proportional, the pilots never stopped work once... The legal eagles can complicate it all they like, something is wrong with the whole process if simple facts are ignored..

Shorten confuses the issue even further in this clip.....

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[shon7]

They will look at what we can do. Not what we did.

Passengers can't make out this difference. If there is potential of industrial action they book on other carriers

[theheadmaster]

The role of the judicature is not to assess if the law is 'flawed', but to apply the law. If the practical outcome of the application of the law is against the intent of the legislature, then the legislature needs to amend the Act.

Above when I stated that the judicature is not under pressure from the public or government, that does not exclude the possibility of pressure being applied between the parties, the government and the public ;)

[speeeedy]

The industrial action was terminated under S424 of the fair work act, and it reads:

FAIR WORK ACT 2009 (NO. 28, 2009) - SECT 424

FWA must suspend or terminate protected industrial action--endangering life etc.

Suspension or termination of protected industrial action

(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

It is very clear that Fair Work can only terminate or suspend action that causes a threat to life, personal safety or health, welfare etc or significant damage to the Australian economy.

Fair Work openly stated that it was Qantas' action that threatened the economy not the unions (even the 3 in aggregate). Therefore Qantas should have been ordered to terminate or suspend the lock out, and the unions should have been left alone until they actually did something that would allow s424 to be used.

Someone put an article on Qrewroom written by a right wing lawyer arguing exactly this point, I'll try to find it and post it.

AIPA could be on a winner.....:ok:

[Tuner 2]

That may be so. But once the QF action is rightly terminated, do you then run into s413(7), which removes immunity for PIA to the other parties, and thus rendering the PIA useless?

[theheadmaster]

Speeedy, my understanding is that the arguments by all of the parties were somewhat more sophisticated than that.

My understanding of the argument presented was if the action was response action by Qantas, then the action was protected. Termination of protected action terminates the protected action of both Qantas and the party they are responding to. Thus the question is if the action by Qantas was response action for AIPA's action. AIPA argues that it was not, or that the court (FWA) did not put its mind sufficiently to the fact of determining if the response was to AIPA - leading to an administrative law question of jurisdiction. The respondents argue that any response is, by definition, response action and therefore FWA was not obliged to consider proportionality or disaggregate the actions of the separate parties.

The arguments on both sides were convincing. It will be interesting to see how the three judges argue their decision.

[TIMA9X]

It is very clear that Fair Work can only terminate or suspend action that causes a threat to life, personal safety or health, welfare etc or significant damage to the Australian economy.thanks speeeedy
well said. AIPA do indeed have a solid argument, and are on a winner, reading between the lines, Gillard & Co know it.. probably why they were hedging their bets when speaking to the media at the time...

that does not exclude the possibility of pressure being applied between the parties, the government and the public thanks for that theheadmaster as well, I agree, probably what I was trying to say in the first place.. you are much better at explaining these things than I am.:ok:

[theheadmaster]

AIPA's action does not have to pass the test in s 424. It was accepted that the lockout action of Qantas met the test. That action is protected if it is response action. If it is protected response action, a termination order terminates that action and the action it is in response to. That leads to the issues I listed above.

AIPA's argument is not 'a winner'. The judges did not appear to be swayed grossly one way or the other in their response questions to counsel, in fact they pressed both sides quite hard at times to justify their arguments (so I heard).

Like I said, it will be interesting to see how they attack the issues after giving consideration to the differing arguments.

[speeeedy]

headmaster,

S424 says clearly that protected industrial action must be suspended or terminated if the PIA threatens the economy.

The PIA that threatened the economy was Qantas' and Qantas' alone.

It does not say that all PIA must be suspended or terminated it says the PIA that caused the economic harm must be suspended or terminated.

There is absolutely nothing in S424 that says what you wrote:

a termination order terminates that action and the action it is in response to.

There is an argument about S413, which says that a common requirement for PIA is that (amongst 7 things) there is not an order for suspension or termination in relation to the agreement.

As this is a common requirement it should be read and applied against each item individually. For example it is possible for a unions particular action to be terminated or suspended if it is found to be damaging, but allow other actions from the same union to remain protected.

In this section the "industrial Action" that is terminated is "industrial action" and those that are not are "protected industrial action" as per the common requirements.

So Qantas' action is terminated therefore under the S413 common requirements a lockout is no longer protected.

AIPA's action should not have been terminated under S424 therefore it would follow that under the S413 common requirements if that particular industrial action was not terminated it should still qualify to be protected.

[theheadmaster]

You are correct that s 424 does not specifically say that. Justices Perram and Lander I believe both put to Mr Moses (counsel for AIPA) that other sections of the Act effectively did that, and Mr Moses accepted that argument. You may be correct regarding it being s 413, but I am not certain.

[TIMA9X]

Jeez, now I'm glad I'm not a lawyer

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edited to include

Days lost to strikes and lock-outs rocket


DAYS lost from strikes and lock-outs nearly doubled last year to its highest annual level since 2004.


Nearly a quarter of a million working days were lost in 2011 to industrial action, Bureau of Statistics data shows, as critics blamed Labor's Fair Work laws for the rise.


Labor's Fair Work laws took effect in mid 2009 and for the first 18 months industrial action remained near record low levels. But 2011 was marked by a significant rise in days lost from industrial action which included the high profile Qantas dispute.


Opposition workplace relations spokesman Eric Abetz said ''we are seeing significant increases in industrial disputation'' and warned that Labor's moves to abolish the building industry watchdog would give ''militant union bosses'' more power to disrupt worksites.


Unions and the Gillard government downplayed the increase. Workplace relations minister Bill Shorten blamed disputes between Liberal state governments and public servants and the Qantas dispute.
Mr Shorten said days lost in the December quarter fell from the previous quarter. Data on strikes varies wildly from quarter to quarter but 2011 marked the first significant rise under the Fair Work system.


ACTU president Ged Kearney said the mid-year rise in days lost to industrial action was largely due to a one-day public sector rally in NSW.
"The facts are that the Fair Work Act is operating well and the number of days lost to industrial action remains near record lows,'' she said.


Ms Kearney said disputes were ''not all one-way traffic'' and ''often these disputes have dragged on because of the employer's unwillingness to engage in genuine negotiations with workers''.

According to the ABS data, the long term trend for strikes has been down. In 1991, days lost to industrial action were in excess of 1.5 million days, more than six times higher than last year's figures

Read more: Days losts to strikes and lock-outs rocket (http://www.smh.com.au/opinion/political-news/days-losts-to-strikes-and-lockouts-rocket-20120308-1umr8.html#ixzz1oWSEzWIX)

[TIMA9X]

Cookies must be enabled. | The Australian (http://www.theaustralian.com.au/national-affairs/industrial-relations/new-actu-boss-dave-oliver-to-take-on-tony-abbott/story-fn59noo3-1226294178579)
INCOMING ACTU secretary Dave Oliver has vowed to pressure Labor for increased union bargaining rights while mobilising unions in a campaign offensive aimed at stopping Tony Abbott winning power at next year's federal election. Mr Oliver told The Australian yesterday his key priority was to make the ACTU a "high-profile campaigning organisation", and he wanted to instigate a community-backed political strategy that outstripped the union movement's efforts at the 2010 election.


"I think there will need to be a significant campaign because, no doubt, despite what Tony Abbott is saying out there that Work Choices is dead, buried and cremated, we know that will not be the case, and we think there will be serious threats to the working community in this country if he is elected," Mr Oliver said.


"It will be a lot different than the last federal election campaign. I think there will be more mobilisation, more engagement with the community, and that's what I am keen to do if I am successful in getting the position . . . to rebuild the linkages with the communities, to get more buy-in from the unions around the country."


The push by Mr Oliver, who is certain to succeed Jeff Lawrence after nominating for the ACTU secretary's position yesterday, came as new figures showed the number of working days lost to industrial disputes had almost doubled in the past 12 months, prompting business and industry to blame the bargaining provisions in Labor's Fair Work laws.
Australian Bureau of Statistics figures show the number of working days lost to lockouts and strikes rose from 126,600 in 2010 to 241,500 last year.
Business groups seized on the results to say the government's workplace laws were hampering national productivity and urged the independent panel conducting the review of the Fair Work Act to "rein in" right-to-strike provisions.


Workplace Relations Minister Bill Shorten said the December quarter results were positive, with only 54,300 days lost compared with the 101,300 days lost in the three months to September.
"We're pleased with that number," Mr Shorten said. "This is at a time when there's been increased disputation between public servants and Liberal governments at the state level and also some of the turmoil that happened at Qantas."


Mr Oliver said he intended to push for legislative changes that gave unions greater access to arbitration to resolve protracted disputes.
He said the union that he led, the Australian Manufacturing Workers Union, had been locked in negotiations with bionic ear maker Cochlear for five years, and called for more requirements to be imposed on employers to bargain in good faith.


"For five years we have been trying to reach agreement and the employer stands up and puts their hand on their heart saying we have been bargaining in good faith when clearly they are not."
Arguing for more ready access to arbitration, he referred to the Qantas dispute.


"I think it was a complete nonsense that you had to have a CEO of an airline (Alan Joyce) to ground an entire fleet to get access to arbitration, so they are the big issues that we want to see reformed under the Fair Work Act," Mr Oliver said.


He said he had been able to work constructively with employers and government on issues confronting the manufacturing sector but he feared some employers had been willing recently to take a "more militant stance".
"Unfortunately, following the election of John Howard (in 1996), we saw the door slam very quickly and very decisively on any process of engagement with the unions," he said.


"When that happened, we saw productivity take a dive.
"We would be very concerned, if Abbott is elected, there will be the mentality that doors will be shut, there won't be collaboration and there may be confrontation from some employers, and we are seeing that now."


Mr Oliver said it was a "bit early" to quantify the size of the warchest that would be used to fund the campaign leading up to the election.
Pointing out that the 2007 Your Rights At Work campaign was three years in the making, he said it was "very important that very soon, after the ACTU congress (in May), I will be wanting to ensure that we can get the support of the union leadership around this country to conduct a major campaign - a major campaign around job security, and a major campaign fighting for the rights of workers in this country."


"And that will be a major campaign that we take all the way up to the election."
Paul Howes, the right-wing secretary of the Australian Workers Union, backed Mr Oliver's stand. "We should not be on the back foot about industrial relations . . . working men and women in this country have a right to be heard," he said.


National Left unions agreed yesterday to support Mr Oliver's nomination, while paying tribute to the work done by Mr Lawrence.
"Dave Oliver is an outstanding candidate for the position of ACTU secretary and has the support of the Left unions," they said.
"He has both the experience and expertise to take on this role at what is a critical time for the labour movement."
posted for people who can't get through the pay wall.

Workplace Relations Minister Bill Shorten said the December quarter results were positive, with only 54,300 days lost compared with the 101,300 days lost in the three months to September.
"We're pleased with that number," Mr Shorten said. "This is at a time when there's been increased disputation between public servants and Liberal governments at the state level and also some of the turmoil that happened at Qantas."
Mr Oliver said he intended to push for legislative changes that gave unions greater access to arbitration to resolve protracted disputes

True to form, Bill Shorten is all over the place on this issue.... hunts with the hares and runs with the hounds..:ugh:
Arguing for more ready access to arbitration, he referred to the Qantas dispute.
"I think it was a complete nonsense that you had to have a CEO of an airline (Alan Joyce) to ground an entire fleet to get access to arbitration, so they are the big issues that we want to see reformed under the Fair Work Act," Mr Oliver saidSeems the pressure is on the FWA and my view all along as as well... and some momentum for the AIPA appeal...

.

[TIMA9X]

Any progress news on the appeal status?

[illusion]

Mate, it is unlikely you will get a ruling inside TWO TO THREE YEARS from this mob. Don't hold your breath.

[Handbrake]

I recall FWA suggested a timeframe of 3 months. A landmark case may see this extended though.

[unionist1974]

A decision from a Full Bench of the Federal Court is not forthcoming in a matter of weeks .Given that this Act is new legislation , the learned Judges will take their time to get it right .