AIPA vs FWA
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.
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.
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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.
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
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.
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.
Last edited by theheadmaster; 8th Mar 2012 at 04:11.
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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:
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.
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.
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.
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.
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Jeez, now I'm glad I'm not a lawyer
edited to include
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
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
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Cookies must be enabled. | The Australian
posted for people who can't get through the pay wall.
True to form, Bill Shorten is all over the place on this issue.... hunts with the hares and runs with the hounds..
Seems the pressure is on the FWA and my view all along as as well... and some momentum for the AIPA appeal...
.
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."
"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."
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
"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
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
"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
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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 .
