The 49ers and Related Issues(Merged)
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...were debating this on a 'public website' because the AOA leadership closed down our own version of this site, called CPRUNE. This was done because the members were debating the rather less than honest machinations going on within the AOA executive during the debate over our new housing and rostering deals. The comments amongst members were mostly negative, soooooo, our leadership decided to do away with our debating site.....how democratic..!! For that reason, we have now reverted back to PPRUNE. Please feel free to add your comments.
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Actually this ongoing action DOES have an effect on many things, the Union has, over the past months made serious attempts to get a working relationship going with management with a view to resolving outstanding issues and moving forward with negotiation of such insignificant matters as pay rises, etc etc.
The GC position has always been that full relations with CX would not be restored until such time as the position regarding the 49'ers has been settled................to this end the offer to settle.
This offer can be viewed in two ways:
1. Weakness on the part of the company, the usual bo##ox about, how they will never go to court, they cannot have the public see what terrible managers they are etc etc (Dream on boys, I think you'll find they are pretty happy!!!)
2. A realistic offer of settlement based on the Maximum award a court is likely to make plus a review of employment status that no court can award (I refer you to the previously stated Barristers Opinion, "If we won this offer in court, we'd be hailing it as a major victory")
Cost of the action is not the issue, the issue is why prolong the whole mess when a reasonable offer of settlement is on the table ??? Had the Union done what it should have done to support it's members and gone on strike the day these guys where terminated this discussion would not be neccessary!!!!!
The GC position has always been that full relations with CX would not be restored until such time as the position regarding the 49'ers has been settled................to this end the offer to settle.
This offer can be viewed in two ways:
1. Weakness on the part of the company, the usual bo##ox about, how they will never go to court, they cannot have the public see what terrible managers they are etc etc (Dream on boys, I think you'll find they are pretty happy!!!)
2. A realistic offer of settlement based on the Maximum award a court is likely to make plus a review of employment status that no court can award (I refer you to the previously stated Barristers Opinion, "If we won this offer in court, we'd be hailing it as a major victory")
Cost of the action is not the issue, the issue is why prolong the whole mess when a reasonable offer of settlement is on the table ??? Had the Union done what it should have done to support it's members and gone on strike the day these guys where terminated this discussion would not be neccessary!!!!!
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Nope the offer wouldn't be necessary and we would all be working for a darn sight less than we do now. I assume the airline senior management has a contingency plan in the cupboard ready to dust off to cover the 'total strike' scenario. It would be extremely similar to what happened in OZ. I note the offer was rejected by 36% of the pilots and so the dance continues.
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"Be it resolved that the Membership of the Association accepts the Company Offer of 14th December 2004 on the 49ers.
Motion failed with 63.9% cast in favour and 36.1% cast against the motion"
Close, very close. Possibly the worst result it could be. The Company and GC will feel vindicated that the agreement they came to was accepted by a big majority - the 49'ers will feel bitter that there is so obviously little support for them. Would have been better to have either been yes, or a resounding no.
This vote makes it look like the AOA members agree with the company that the 49'ers are an embarrassment to be forgotten
Motion failed with 63.9% cast in favour and 36.1% cast against the motion"
Close, very close. Possibly the worst result it could be. The Company and GC will feel vindicated that the agreement they came to was accepted by a big majority - the 49'ers will feel bitter that there is so obviously little support for them. Would have been better to have either been yes, or a resounding no.
This vote makes it look like the AOA members agree with the company that the 49'ers are an embarrassment to be forgotten
St James Ethics Centre
We are honoured to stand amongst such men.
Plato records Socrates as having asked the fundamental question of ethics, "What ought one do?". Whenever one seeks to answer that question, then one is operating in the ethical dimension. There are a number of things that should be noted about this question. The first thing to note relates to what Socrates did not ask! Socrates did not begin by asking questions such as, "What is good, what is evil?" or, "What is right, what is wrong?". Rather, he asked an immensely practical question that confronts people whenever they have a decision to make, whenever they are in a position to exercise their capacity to choose. Socrates did not mark off a special area which was to be the terrain for ethical reflection.
FR
Thanks for the inspiration. I thought I had said more than enough already but obviously not judging by the burst of recent posts.
Indeed, what ought one do?
When the company and the GC were first whispering in ears, I dragged out the GUILT/BLAME matrix that I used to use to negotiate with the kids when they were teens. I reached the conclusion that a settlement was indeed possible, as long as both emotion and the AOA stayed outside once the door started to open.
Basically, for this case, the matrix goes like this:
(the numbers are based on my assessment)
GUILT: (each party allocates themself a score out of ten)
CX Mgt 2,AOA GC/GenSec 3,49ers 1
If we have accounted for 50% of the guilt and everyone has a score on the board, then we move forward.
BLAME: (each party allocates to themself and the other parties a score that must total 10)
CX Mgt - CX 1/AOA 5/49ers 4
AOA - CX 6/AOA 2/49ers 2
49ers - CX 6/AOA 2/49ers 2
In this case, if the 49ers get less than 50% of the blame but also have a score, then we move forward again.
Obviously this is a very in-exact science with a lot of moving parts, but I trust you get the drift.It is basically about realising that in most conflict situations, the guilt and blame are actually shared.
Since 2001, a lot of the original cast has moved on, and many that haven't, have their own form of selective amnesia.
So all parties feel some guilt and all would blame themselves for some of the problem. Therefore a solution must be possible.
Who then should now be involved? IMHO, the 49ers and the company...end of story. You are united enough and organised enough to walk alone if you want real closure.As I said earlier, take your position to the company directly.The AOA cannot act as an honest broker in this.
If and when you can move, remember the following:
-All the business school theory about negotiating does not apply. The company is not offering to settle because of pending court cases or potentially bad publicity. They have provisioned for any court settlements. Any negative PR will have only a very small audience and soon become tomorrow's fish wrapper. Indeed using the reputation argument could very well blow up in your face.
- Lawyers know nothing of the real world. They only understand litigation and torts. The legal process may bring a settlementof some kind, it cannot bring closure.
- Old Mohawk Indian Proverb - "It is hard to see the future with tears in your eyes". Emotion will not get it done for you. If you want closure, put what you want succinctly on paper and take it quietly to those I suggested.
If I see this thread go quiet, progress is afoot. Good luck
PS:
Tamalai
I hope time will show you that the AOA was never, is not and will never be a union. It pretended to be and look what happened.
Next time you open your wallet, think about how much of your credit rating is due to who you work for in HK and not what your profession is. On paper the bank may hold the mortgage but they do so only in escrow for the guarantor. Only then will you understand that the AOA pretended to be something it wasn't and could never be.There simply is not the leverage available to exercise industrial muscle, it must be done the hard way by lobbying and negotiating ad nauseum.
That is why many voted with their feet, not out of petulance but out of a basic philosophical difference that arose when we started paying someone to tell us we were fools and that good old fashioned union muscle would get us what we wanted.
Thanks for the inspiration. I thought I had said more than enough already but obviously not judging by the burst of recent posts.
Indeed, what ought one do?
When the company and the GC were first whispering in ears, I dragged out the GUILT/BLAME matrix that I used to use to negotiate with the kids when they were teens. I reached the conclusion that a settlement was indeed possible, as long as both emotion and the AOA stayed outside once the door started to open.
Basically, for this case, the matrix goes like this:
(the numbers are based on my assessment)
GUILT: (each party allocates themself a score out of ten)
CX Mgt 2,AOA GC/GenSec 3,49ers 1
If we have accounted for 50% of the guilt and everyone has a score on the board, then we move forward.
BLAME: (each party allocates to themself and the other parties a score that must total 10)
CX Mgt - CX 1/AOA 5/49ers 4
AOA - CX 6/AOA 2/49ers 2
49ers - CX 6/AOA 2/49ers 2
In this case, if the 49ers get less than 50% of the blame but also have a score, then we move forward again.
Obviously this is a very in-exact science with a lot of moving parts, but I trust you get the drift.It is basically about realising that in most conflict situations, the guilt and blame are actually shared.
Since 2001, a lot of the original cast has moved on, and many that haven't, have their own form of selective amnesia.
So all parties feel some guilt and all would blame themselves for some of the problem. Therefore a solution must be possible.
Who then should now be involved? IMHO, the 49ers and the company...end of story. You are united enough and organised enough to walk alone if you want real closure.As I said earlier, take your position to the company directly.The AOA cannot act as an honest broker in this.
If and when you can move, remember the following:
-All the business school theory about negotiating does not apply. The company is not offering to settle because of pending court cases or potentially bad publicity. They have provisioned for any court settlements. Any negative PR will have only a very small audience and soon become tomorrow's fish wrapper. Indeed using the reputation argument could very well blow up in your face.
- Lawyers know nothing of the real world. They only understand litigation and torts. The legal process may bring a settlementof some kind, it cannot bring closure.
- Old Mohawk Indian Proverb - "It is hard to see the future with tears in your eyes". Emotion will not get it done for you. If you want closure, put what you want succinctly on paper and take it quietly to those I suggested.
If I see this thread go quiet, progress is afoot. Good luck
PS:
Tamalai
I hope time will show you that the AOA was never, is not and will never be a union. It pretended to be and look what happened.
Next time you open your wallet, think about how much of your credit rating is due to who you work for in HK and not what your profession is. On paper the bank may hold the mortgage but they do so only in escrow for the guarantor. Only then will you understand that the AOA pretended to be something it wasn't and could never be.There simply is not the leverage available to exercise industrial muscle, it must be done the hard way by lobbying and negotiating ad nauseum.
That is why many voted with their feet, not out of petulance but out of a basic philosophical difference that arose when we started paying someone to tell us we were fools and that good old fashioned union muscle would get us what we wanted.
Last edited by VR-HFX; 15th Feb 2005 at 23:28.
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Some light relief today from Hemlock:
http://www.geocities.com/hkhemlock/r...y-19feb05.html
http://www.geocities.com/hkhemlock/r...y-19feb05.html
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I'm standing beside the swing-o-meter and it appears that a swing of 13 votes are all that would have been needed to get the 2/3 majority needed.
That sends out one hell of a message to the AOA and the 49ers.
Who is the winner? The lawyers.
Will the AOA membership support the 49ers in their action? Well almost 2/3's thought that they should have taken the settlement offered.
I think things are about to get very interesting.
That sends out one hell of a message to the AOA and the 49ers.
Who is the winner? The lawyers.
Will the AOA membership support the 49ers in their action? Well almost 2/3's thought that they should have taken the settlement offered.
I think things are about to get very interesting.
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From another forum
Well you heard it here first.....
The one thing that we've all said is that we won't talk CoS until the 49ers are settled. Yes, we've given away: contract compliance, PR, HCA3390, HCMP1679, Recruitment Ban, SLS, RP04, AFTLS, AHK scope, housing - anybody remember anything else?
However, we've always said: No CoS until 49ers solved {No Dave No Deal}
So are we going to let our GC go and "negotiate" CoS without getting The 49ers deal? You bet we are!!
The GC have been in for months "brainstorming" {please excuse the oxymoron} CoS in an effort to seduce management into dealing on The 49ers. Well of course, the AOA have just rejected the Offer.
What would you do next?
Say "Very sorry, no age 60 retirement, no B Scale retirees, no mixed crew flying (remember ASL?) until we've solved The 49ers".
Say"Ok well we got close - pity only 4 49ers wanted the Offer. Anyway let's now deal on COS and ignore that slight problem".
Of course, as soon as you enter into CoS talks it would be quite ok for CX to say "Well we're now in KA/CX merger planning - don't worry, the savings will only be in all of the other departments, your seniority list won't be touched...."
Now that would be ok, wouldn't it.... after all you're about to get a 2% pay rise when you ditch The 49ers....?
The one thing that we've all said is that we won't talk CoS until the 49ers are settled. Yes, we've given away: contract compliance, PR, HCA3390, HCMP1679, Recruitment Ban, SLS, RP04, AFTLS, AHK scope, housing - anybody remember anything else?
However, we've always said: No CoS until 49ers solved {No Dave No Deal}
So are we going to let our GC go and "negotiate" CoS without getting The 49ers deal? You bet we are!!
The GC have been in for months "brainstorming" {please excuse the oxymoron} CoS in an effort to seduce management into dealing on The 49ers. Well of course, the AOA have just rejected the Offer.
What would you do next?
Say "Very sorry, no age 60 retirement, no B Scale retirees, no mixed crew flying (remember ASL?) until we've solved The 49ers".
Say"Ok well we got close - pity only 4 49ers wanted the Offer. Anyway let's now deal on COS and ignore that slight problem".
Of course, as soon as you enter into CoS talks it would be quite ok for CX to say "Well we're now in KA/CX merger planning - don't worry, the savings will only be in all of the other departments, your seniority list won't be touched...."
Now that would be ok, wouldn't it.... after all you're about to get a 2% pay rise when you ditch The 49ers....?
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It is really too bad that some and possibly many can't understand that there is no winning possible. It's all about losing and how much or quickly we lose it is mostly up to us.
Watch how much we lose now that we upset the bear!
Silly me...one too many "o's"
Watch how much we lose now that we upset the bear!
Silly me...one too many "o's"
Last edited by cpdude; 19th Feb 2005 at 00:56.
I must be getting old
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OPTIONS
In deciding what Motions are required, the GC considered the various courses of action available to the Association. The Motions that we conclude are necessary are covered in some detail later in this Newsletter, but first it is appropriate that we should provide you with insight into your GC thinking on each of the options considered.
Do Nothing
It has been suggested by some Members that the best approach for now is to do nothing, allow the dust to settle and then perhaps a path forward may become clearer. Moreover, they suggest that it is appropriate to assume that the funding for the legals will materialize at the required moment and that, in any case, the continued existence of the legal actions will elicit a significantly better offer of settlement from the Company at some stage prior to their conclusion.
Whilst, we fully agree that sitting on our hands and taking stock of the situation was the most sensible initial action, we believe it is clear from ample Member feedback on costs and the recently defined position of the Company, as described in our Newsletter of 25th February, that time is not on our side.
Therefore, we have rejected this strategy in favour of a more proactive approach to gain positive guidance from the Membership.
Re-consider the Offer
Some Members, including some 49ers, consider that the best course of action is to simply vote again on the Offer, as provided for under Rule 17.50. Moreover, we are advised by our industrial consultant that this is a common occurrence in similar situations. Certainly, there is new information available for us all to consider:
• Prior to the vote on the Offer, none of us could accurately judge the level of support for continuing forward with the legal cases. We did not know if 10% or 90% of the Membership would support acceptance. The narrow defeat of the previous motion may indicate a serious shortfall in the required Membership support to continue forward on the legal path with the financial commitment that entails.
• The Company has indicated that the current Offer will not be available beyond 16th May and that they will then make a cash-only Offer through a “payment into court”. We must assume that this means that the opportunity of re-employment, an important component of our original objective for a 49ers resolution, would then be lost.
• As described in the legal advice provided by Instructing Solicitors (still available to you on the web site), a ”payment into court” considerably increases the likely costs to the Association of the actions going forward.
• Following the vote on the Offer, we have been petitioned by some 49ers and Members requesting a re-vote.
Whilst this clearly remains an option worthy of consideration, the GC does have to recognize that the Offer did not achieve the required 2/3rds support. Moreover, it is likely that many of those who voted against acceptance of the Offer would feel that the new information in itself does not warrant a re-consideration. Those Members would feel that the appropriate next step should be to identify the funding to carry forward with the legal actions. We believe that this view must be acknowledged and a feasible plan developed.
However, as previously advised, in conjunction with our Solicitors we have concluded that we do not have the required mandate to simply continue with the funding of the legal actions on the basis of the failure of the vote on the Offer. Additionally, there is clear jeopardy to the Association in this route and therefore we need to know that the commitment is there in order to go forward with the legal actions. We believe it would be better to know the answer to this question whilst there are still other options available to us.
Vote on Legal Funding
The situation is that no positive mandate for funding of the actions has ever been obtained from the Membership. The actions were started in 2001 as a proper legal response to the 49er dismissals and to serve as a pressure point to promote a resolution through negotiation. The financial ramifications of funding the actions to conclusion were less of an issue at the time as it was hoped that we would never reach that point before a resolution through negotiation could be achieved.
To date, we have spent HKD12 million of the Association’s money in support of these actions (allowing for monies returned in costs awards to do with a number of appeal and jurisdictional rulings). We estimate that the Company, as is normally the case, will have spent more.
In going forward with the legal actions, we are advised that to get the actions to a verdict will cost a further HKD13 million. As the legal process is now approaching the point where expenditure beyond our current reserves will be required, ensuring that the proper funding is in place has been a growing concern of your GC for some time. However, for obvious reasons these were concerns that we considered should be kept extremely confidential prior to entering into any negotiations with the Company.
Our concern is to ensure that:
• There are sufficient funds available to bring these actions to a verdict, and
• in a situation where the actions were discontinued due to lack of funds, or where a costs award is made against the 49ers, that sufficient Association funds are available to cover any costs. If this precaution is not taken, individual 49er plaintiffs would be exposed to the near certainty of having to pay the Company costs in the action to that point. These costs could be considerable. If we consider that Company costs are likely to already exceed the HKD 12 million the Association has spent, and with significantly more costs ahead, this would obviously be a disastrous situation for the 49ers.
We believe that these are both strong reasons to ask the question on funding and if Members are not willing to bear the considerable cost of continuing to the point of legal finality, it is better that the 49ers find out sooner rather than later.
Your General Committee has examined a number of options for providing the funding required to carry the legal actions forward, but has concluded that a levy is the most sensible option. Under Rule 6.4 a levy is a payment in addition to normal subscriptions which may be raised for a particular purpose. A levy in instalments would spread the cost, but ensure that the funds are in place prior to the point at which the increased expenditure will be required. The extent of the levies may be mitigated by other means and we have investigated the following:
• Sale of premises. Sale of premises could provide funds of between HKD 3 and 4 million but would expose the Association to relocation and ongoing rental costs in a volatile market. We believe this is a poor option.
• Borrowing. The only collateral the Association could advance is premises. Due to the age of the premises we are advised that the loan amount would not exceed HKD 2.5 million. In borrowing money for this purpose, we would be placing a debt burden on future Members that your Committee, and our auditors, feels is more properly borne by current Members. We believe this is a poor option.
• IFALPA Funding. IFALPA will not agree to fund these actions and have advised us as follows: “The only financial support that IFALPA offers is suspension of subscriptions to Member Associations in financial difficulties and help with representation at conferences, meetings etc. We are a federation of pilot associations and requests for support for any cause would certainly have to come through our Member Associations. We would not support any individual pilot or group of pilots in a legal action as such a precedent would have impossible consequences. “
• Reduce staff costs. VPA conducted a very thorough audit of our staff costs only nine months ago, including benchmarking salaries against the marketplace. The conclusion is that our staff structure and cost base is efficient and appropriate for our needs in the near and medium term.
• Re-direction of subsistence monies from the 49ers to legal funding. This is a decision that properly belongs with the Membership and that option is available to you through motions on this agenda.
• Donations. Donations are a very feasible means of mitigating the amount of any levy required. To that end we have established a HSBC account for the purpose of collecting donations. This account is now open and ready to receive donations. Checks should be made payable to “HKAOA” and marked on the back “49er Legal Fund”. If you wish to make a direct transfer, please contact the AOA Office. Any donations received will be used only for funding 49er legal actions, and only if the decision of the Association is to continue to fund the actions. Should it be the decision of the Association to not continue funding the actions, any donations will be returned in full. Should it be the decision of the Association to continue to fund the actions, the donations will be used to mitigate the subsequent amount of the two levies when they are raised.
OTHER ISSUES
Subscriptions
In response to the feedback we have received, it is clear that we must provide the Membership with an opportunity to determine what it will fund in addition to normal running costs.
Consequently, the Committee has decided that a basic subscription rate should be set to cover only Association running costs with a small buffer which would allow for limited additional expenses. Funding for other issues such as 49er legal and subsistence costs should be raised through special levies that would be voted on by the Membership. In that way the Membership can decide precisely what it is prepared to fund. Therefore, with effect from 1st May the subscription rate will be reduced to 1.5%.
As happened when the subs were reduced from 4% to 3%, this does not require a Membership vote. However, the Membership will be presented with options for maintaining funding at current levels, or even higher, should you choose to do so.
It is important to note that special levies would not be borne by Officers who join the Association for the first time after the levy had been raised, but would form part of the rejoining fee for any former Member seeking to rejoin the Association. In this way we believe we can encourage Officers to join the Association who our experience shows are intimidated by the current high cost of membership that has resulted from events with which they feel little connection.
Subsistence
As you are all aware, 49er subsistence has been an integral element of our support for the 49ers since they were terminated and it is something of which this Association can be extremely proud. I am confident that none of us would want to share either their considerable loss or traumatic experience and I know that the 49ers are universally appreciative of this assistance. Moreover, they have voluntarily ‘tightened their belts’ on several occasions now to enable us to reduce the burden on the Members.
Nevertheless, approximately half of our current 3% subscription rate is used to provide an indefinite commitment to a subsistence program that allows any 49er under age 55 to request assistance of up to HKD 25,000 per month.
Whilst your Committee strongly believes we should continue to financially assist the 49ers, having now provided subsistence for over three and a half years and in light of the ongoing uncertainty of when a resolution will be found, we believe we should seek to define a reasonable time limit on continued subsistence, and the level that Members are prepared to support . On the expiry of this period the Membership would be able to review its commitment.
Therefore the GC will provide an option for you to do this through a levy. As funds raised through levies are directed at their sole purpose, should further ‘belt tightening’ or reduced demand lead to a surplus, it can easily be identified and returned to the Membership.
ACTIONS
After a full consideration of all factors, your Committee has decided upon the following actions:
1. Reduce the subscription rate to 1.5% wef 1st May 2005.
2. Convene an EGM to debate and vote on a series of motions on raising levies to cover most 49er related costs, including continued funding of the legal actions.
3. Only in the event that funding for the legal actions is not mandated by the Membership, reconsider the Company Offer.
EGM MOTIONS
Motion 1 – LEVY TO FUND LEGAL ACTIONS
Be it resolved that the Association will continue to fund the ongoing legal actions relating to the 49er dismissals for those plaintiffs whom it represents, and to that end the following levies will be raised and payable in addition to basic subscriptions:
A levy of up to twelve (12) months subscriptions (at the level of 1.5% of basic salary) to be payable in equal monthly installments commencing on 1st July 2005; plus.
A levy of up to twenty four (24) months subscriptions (at the level of 1.5% of basic salary), to be raised as and when required to cover any additional costs of the actions.
Such levies will be payable by Full Members who are Members of the Association on 1st June 2005 or former Members who subsequently rejoin.
These levies would raise a funding guarantee that would ensure that the actions could be brought to a conclusion without exposing the Association or individual 49ers to the potential of a massive financial liability. If it eventuates that the full amount of the levies are not required after they have been raised, the unused portion will be returned to you, as provided under the Rules.
Motion 2 – LEVY TO MAINTAIN CURRENT 49ER SUBSISTENCE LEVELS
Be it resolved that the Association will continue to provide current levels of subsistence and medical coverage to any 49er requesting such assistance, for a period of up to twelve (12) months, and to that end the following levy, payable in addition to basic subscriptions, will be raised:
A levy of up to twelve (12) months subscriptions (at the level of 1.5% of basic salary), to be payable in equal monthly installments commencing on 1st July 2005.
This levy will be payable by Full Members who are Members of the Association on 1st June 2005 or former Members who subsequently rejoin.
Current subsistence arrangements provide for any 49er below retirement age to request assistance up to the amount of HKD 25,000 per month. When combined with the new basic subscriptions rate of 1.5% this proposed levy would equate to our current subscriptions level of 3% and reflects the fact that 49er subsistence currently accounts for approximately half of our annual expenditure.
The continuance of this subsistence for a further limited period would provide much appreciated stability and reassurance to the 49ers and their families as they deal with the uncertainty of the immediate future. Your Committee urges you to continue supporting this level of subsistence. Should further belt tightening, or reduced demand result in a surplus, this surplus will be returned to you, as provided under the Rules.
Motion 3 – TO CONTINUE 49ER SUBSISTENCE WITHIN RESOURCES
It is important to note that Motion 3 will only become effective in the situation where Motion 2 has failed. However, you will need to submit a vote on this motion and your vote on this motion should assume that Motion 2 has failed.
Be it resolved that the Association will continue to provide subsistence and medical coverage to 49ers within available resources, for a period of up to twelve (12) months. Be it further resolved that this motion will only be effective if Motion 2 fails.
Your Committee has asked that you continue supporting the current levels of subsistence for a limited period through a positive election for Motion 2. However, should you feel unwilling to continue to fund that level of support, your Committee would urge you to at least give your support to the continuation of subsistence payments in some form. In that situation, we would have to manage our available resources through the introduction of significantly more stringent criteria than those that currently exist.
Motion 4 – TO ACCEPT COMPANY OFFER
It is important to note that Motion 4 will only become effective in the situation where Motion 1 has failed. However, you do need to submit a vote on this motion and your vote on this motion should assume that Motion 1 has failed.
Be it resolved that the Membership of the Association accepts the Company Offer of 14th December 2004 on the 49ers. Be it further resolved that this motion will only be effective if Motion 1 fails.
In the situation where Motion 1 fails, the Association will have decided to discontinue support of the legal actions and acceptance of the Offer would seem to be the only sensible alternative remaining for the Association. Therefore, regardless of how you vote on the Legal Funding motion, we believe you should strongly consider voting for acceptance of the Offer on this occasion. This would allow those 49ers who wish to do so to accept the Offer, and those who do not to retain their right to continue with the legal actions on an individual and self funded basis.
SUMMARY
There is no doubt that the realities of our situation have conspired to place us in a difficult position and no path forward exists that will fully satisfy all Members. Moreover, we are faced with difficult choices that will require significant commitment or compromise.
We are certain that the outcome of the vote on the Offer has created the potential for a very real Membership crisis within our Association. Whilst obtaining a resolution to the 49er situation and taking care of their welfare remain very high priorities for your Committee, we are now required to provide the Membership with an opportunity to clearly indicate to what extent they are prepared to continue funding their Association and the needs of the 49er cause. Simply put, Members are the Association’s lifeblood and we are only as effective as the size of our Membership and their commitment allows.
In the circumstances, your Committee and I have striven to provide you with a clear description of the challenges that face us going forward. We believe that the result of the vote on these motions will provide the clearest possible indication as to the direction that is supported by the majority of the Membership. This is the direction that is most likely to further the interests of the 49ers and of your Association.
We ask for respectful and constructive debate, and we urge you to remain informed, during the period leading up to the EGM, which will be held in the middle of April.
Sincerely
President
04 March 2005
Dear Committee
Thank you for your reply to my earlier letter, dated 17th February, which contained the following text:
“…it remains the policy that such budgetary matters are confidential to the GC. However, I can assure you that the answers provided to you at the EGM were correct based on the information recently provided to me by both the Treasurer and the Administrator. Could I further assure you that all members will be provided with all information necessary to make fully informed decisions on any motions relating to cost issues going forward.”
I have read your newsletter dated 4th March 2005, that explains that your priority is to continue the legal funding by introducing Special Levies amounting to HK$48million. That equates to me paying HK$102,360. I’m afraid that you have given absolutely no explanation of the mathematics involved, so I have not been “provided with all information necessary”.
Please answer the following:
1. The current annual income of the HKAOA is approximately HK$24m i.e. approximately HK$2m per month at 3% subs. From Special Levies 1&2 (Motion 1), you will raise HK$12m and HK$24m, respectively. You stated earlier that you needed HK$30m. Why have you increased this to HK$36m?
2. If the court cases are not scheduled to finish until the end of 2006, or longer including separate damages hearings, why not raise Special Levy 1 over 18months or even 2 years i.e. a final levy of perhaps 0.75% coinciding with date of actual payment?
3. You are allowing for CX costs to be broadly equivalent to ours. Assuming that we will spend HK$12m + HK$13m, CX costs will be _HK$25m. Indeed, Special Levy 2 equates to HK$24m. However, costs are awarded at _70%, therefore the probable liability = HK$17.5m. Why raise an extra HK$7.5m?
4. Item (3) assumed that CX will win in all 3 jurisdictions and they “pay into court” in all 3 jurisdictions – otherwise we are not liable for their costs. If CX “pay into court” and lose then they will still be liable for our costs to date (70% x HK$12m = HK$8.5m). As the lawyers are confident in all jurisdictions, the more likely exposure is 17.5 – 8.5 = HK$9m, therefore why budget for HK$25m?
5. The Committee has previously given direction on all Motions yet no direction is given on Motion 1. Does the Committee urge us to vote for or against Motion 1?
6. You state that staff costs have been “benchmarked”. What other pilots’ unions pay a basic salary of >HK$1.3m for a General Secretary and have less than 1000 members?
7. Why do we need a General Secretary and an Assistant General Secretary when membership numbers have fallen by a third? As the industrial climate is more straightforward now, why not just have an Asst GenSec?
8. When did the 49er Objective become “to get the best possible outcome”?
9. Today, the lowest Seniority number is 1760. There are 123 ASL crew including 61 Flight Engineers. The Association has 9 Associate Class A members. Please explain:
The Association currently has 925 Members. There are 1912 pilots in Cathay Pacific.
10. You appear to have reduced subs because of adverse membership input indicating they will leave. Which gives more income:
a. 875 members paying 1.5% or
b. 825 members paying 3%?
11. Please confirm that that an EGM is required to have a Rule change? When are you going to change the levels in Rule 6.3?
Yours sincerely
This from another forum:
Is that true the general secretary gets paid 1.3million a year? That\'s more than a B scale captain. Does IFALPA pay that sort of money? Sounds way over the top. Now that we give in to whatever cx wants why do we need a general secretary?
If they\'re serious about saving money then there\'s a straight $1.3million saving.
10th March 2005
APRIL EGM
Gentlemen
I write to you all regarding the upcoming EGM scheduled for April in which a number of motions regarding financial assistance to the 49ers are intended to be tabled. Naturally this is a matter of the utmost importance, not only for the 49ers but for the Membership as a whole.
There exists a concern that there are a number of recent developments of which you may not be aware and, therefore, that may not have been taken into account during your deliberations prior to deciding upon the current course of action. Some of these are summarised below.
1. Australian Court Case
At a directions hearing held at the end of February last, the judge set a court date of 6th March 2006 for the case to be heard and set aside 4 weeks for the hearing. This hearing will rule on all matters, both substantive and jurisidictional. In addition, she also set a very detailed timetable of procedural steps to be completed between now and the hearing itself. Now that a specific timetable for this case is available, this facilitates the construction of a more accurate cash flow and business plan regarding possible funding requirements
2. UK Court Case
The case in the Appeal Court is to be heard on either Monday 14th March or Tuesday 15th March 2005 in the Royal Courts of Justice, The Strand, London. This will determine once and for all the issues of jurisdiction. The only possible further avenue of appeal available to either party is the highest court in the land, the House of Lords. In any event, the hearing in the Appeal Court will make case law and set precedent. This is a very significant development on its own. In addition, however, it also has a direct bearing on possible future funding requirements depending on the outcome. Therefore, the view can be held that it would be premature to make irrevocable decisions on funding matters until the result of this hearing is known.
3. Supplementary Funding
Very recently, an independent sponsor has come forward and offered substantial funding for the purpose of assisting with financing the legal actions should this be required. Negotiations on this offer are at an advanced stage and should be completed within the next 3 to 4 weeks. Given that the GC is presently considering a financial plan for the way forward, this is obviously a significant development which should be taken into account.
4. Membership
A significant number of Members, have approached the 49ers and given undertakings to the effect that, should the Association decide to cease funding assistance, they will leave the Association and pay the equivalent of their membership dues directly to the 49ers in order that financial assistance may continue. In addition, it is understood that plans are already in hand to set up an alternative union in such a situation. This is a very serious matter and has significant ramifications for the future viability of the Association itself given that its Membership and finances are already depleted.
Might I suggest that an evaluation of these and other matters be completed by a sub-committee and its report be circulated to the Membership for consideration prior to any irrevocable motions being put to the vote. Might I also suggest that the sub-committee consist of 6-persons: two General Committee Members, two 49ers and two other Full Members; one each “other Full Member” to be chosen by the General Committee and the 49ers respectively, although each may be neither a General Committee Member nor a 49er.
It is strongly recommend that until the General Committee has had the opportunity to properly evaluate these matters, it would be entirely inappropriate for the Membership to be asked to decide on the need for special levies.
Yours sincerely
In deciding what Motions are required, the GC considered the various courses of action available to the Association. The Motions that we conclude are necessary are covered in some detail later in this Newsletter, but first it is appropriate that we should provide you with insight into your GC thinking on each of the options considered.
Do Nothing
It has been suggested by some Members that the best approach for now is to do nothing, allow the dust to settle and then perhaps a path forward may become clearer. Moreover, they suggest that it is appropriate to assume that the funding for the legals will materialize at the required moment and that, in any case, the continued existence of the legal actions will elicit a significantly better offer of settlement from the Company at some stage prior to their conclusion.
Whilst, we fully agree that sitting on our hands and taking stock of the situation was the most sensible initial action, we believe it is clear from ample Member feedback on costs and the recently defined position of the Company, as described in our Newsletter of 25th February, that time is not on our side.
Therefore, we have rejected this strategy in favour of a more proactive approach to gain positive guidance from the Membership.
Re-consider the Offer
Some Members, including some 49ers, consider that the best course of action is to simply vote again on the Offer, as provided for under Rule 17.50. Moreover, we are advised by our industrial consultant that this is a common occurrence in similar situations. Certainly, there is new information available for us all to consider:
• Prior to the vote on the Offer, none of us could accurately judge the level of support for continuing forward with the legal cases. We did not know if 10% or 90% of the Membership would support acceptance. The narrow defeat of the previous motion may indicate a serious shortfall in the required Membership support to continue forward on the legal path with the financial commitment that entails.
• The Company has indicated that the current Offer will not be available beyond 16th May and that they will then make a cash-only Offer through a “payment into court”. We must assume that this means that the opportunity of re-employment, an important component of our original objective for a 49ers resolution, would then be lost.
• As described in the legal advice provided by Instructing Solicitors (still available to you on the web site), a ”payment into court” considerably increases the likely costs to the Association of the actions going forward.
• Following the vote on the Offer, we have been petitioned by some 49ers and Members requesting a re-vote.
Whilst this clearly remains an option worthy of consideration, the GC does have to recognize that the Offer did not achieve the required 2/3rds support. Moreover, it is likely that many of those who voted against acceptance of the Offer would feel that the new information in itself does not warrant a re-consideration. Those Members would feel that the appropriate next step should be to identify the funding to carry forward with the legal actions. We believe that this view must be acknowledged and a feasible plan developed.
However, as previously advised, in conjunction with our Solicitors we have concluded that we do not have the required mandate to simply continue with the funding of the legal actions on the basis of the failure of the vote on the Offer. Additionally, there is clear jeopardy to the Association in this route and therefore we need to know that the commitment is there in order to go forward with the legal actions. We believe it would be better to know the answer to this question whilst there are still other options available to us.
Vote on Legal Funding
The situation is that no positive mandate for funding of the actions has ever been obtained from the Membership. The actions were started in 2001 as a proper legal response to the 49er dismissals and to serve as a pressure point to promote a resolution through negotiation. The financial ramifications of funding the actions to conclusion were less of an issue at the time as it was hoped that we would never reach that point before a resolution through negotiation could be achieved.
To date, we have spent HKD12 million of the Association’s money in support of these actions (allowing for monies returned in costs awards to do with a number of appeal and jurisdictional rulings). We estimate that the Company, as is normally the case, will have spent more.
In going forward with the legal actions, we are advised that to get the actions to a verdict will cost a further HKD13 million. As the legal process is now approaching the point where expenditure beyond our current reserves will be required, ensuring that the proper funding is in place has been a growing concern of your GC for some time. However, for obvious reasons these were concerns that we considered should be kept extremely confidential prior to entering into any negotiations with the Company.
Our concern is to ensure that:
• There are sufficient funds available to bring these actions to a verdict, and
• in a situation where the actions were discontinued due to lack of funds, or where a costs award is made against the 49ers, that sufficient Association funds are available to cover any costs. If this precaution is not taken, individual 49er plaintiffs would be exposed to the near certainty of having to pay the Company costs in the action to that point. These costs could be considerable. If we consider that Company costs are likely to already exceed the HKD 12 million the Association has spent, and with significantly more costs ahead, this would obviously be a disastrous situation for the 49ers.
We believe that these are both strong reasons to ask the question on funding and if Members are not willing to bear the considerable cost of continuing to the point of legal finality, it is better that the 49ers find out sooner rather than later.
Your General Committee has examined a number of options for providing the funding required to carry the legal actions forward, but has concluded that a levy is the most sensible option. Under Rule 6.4 a levy is a payment in addition to normal subscriptions which may be raised for a particular purpose. A levy in instalments would spread the cost, but ensure that the funds are in place prior to the point at which the increased expenditure will be required. The extent of the levies may be mitigated by other means and we have investigated the following:
• Sale of premises. Sale of premises could provide funds of between HKD 3 and 4 million but would expose the Association to relocation and ongoing rental costs in a volatile market. We believe this is a poor option.
• Borrowing. The only collateral the Association could advance is premises. Due to the age of the premises we are advised that the loan amount would not exceed HKD 2.5 million. In borrowing money for this purpose, we would be placing a debt burden on future Members that your Committee, and our auditors, feels is more properly borne by current Members. We believe this is a poor option.
• IFALPA Funding. IFALPA will not agree to fund these actions and have advised us as follows: “The only financial support that IFALPA offers is suspension of subscriptions to Member Associations in financial difficulties and help with representation at conferences, meetings etc. We are a federation of pilot associations and requests for support for any cause would certainly have to come through our Member Associations. We would not support any individual pilot or group of pilots in a legal action as such a precedent would have impossible consequences. “
• Reduce staff costs. VPA conducted a very thorough audit of our staff costs only nine months ago, including benchmarking salaries against the marketplace. The conclusion is that our staff structure and cost base is efficient and appropriate for our needs in the near and medium term.
• Re-direction of subsistence monies from the 49ers to legal funding. This is a decision that properly belongs with the Membership and that option is available to you through motions on this agenda.
• Donations. Donations are a very feasible means of mitigating the amount of any levy required. To that end we have established a HSBC account for the purpose of collecting donations. This account is now open and ready to receive donations. Checks should be made payable to “HKAOA” and marked on the back “49er Legal Fund”. If you wish to make a direct transfer, please contact the AOA Office. Any donations received will be used only for funding 49er legal actions, and only if the decision of the Association is to continue to fund the actions. Should it be the decision of the Association to not continue funding the actions, any donations will be returned in full. Should it be the decision of the Association to continue to fund the actions, the donations will be used to mitigate the subsequent amount of the two levies when they are raised.
OTHER ISSUES
Subscriptions
In response to the feedback we have received, it is clear that we must provide the Membership with an opportunity to determine what it will fund in addition to normal running costs.
Consequently, the Committee has decided that a basic subscription rate should be set to cover only Association running costs with a small buffer which would allow for limited additional expenses. Funding for other issues such as 49er legal and subsistence costs should be raised through special levies that would be voted on by the Membership. In that way the Membership can decide precisely what it is prepared to fund. Therefore, with effect from 1st May the subscription rate will be reduced to 1.5%.
As happened when the subs were reduced from 4% to 3%, this does not require a Membership vote. However, the Membership will be presented with options for maintaining funding at current levels, or even higher, should you choose to do so.
It is important to note that special levies would not be borne by Officers who join the Association for the first time after the levy had been raised, but would form part of the rejoining fee for any former Member seeking to rejoin the Association. In this way we believe we can encourage Officers to join the Association who our experience shows are intimidated by the current high cost of membership that has resulted from events with which they feel little connection.
Subsistence
As you are all aware, 49er subsistence has been an integral element of our support for the 49ers since they were terminated and it is something of which this Association can be extremely proud. I am confident that none of us would want to share either their considerable loss or traumatic experience and I know that the 49ers are universally appreciative of this assistance. Moreover, they have voluntarily ‘tightened their belts’ on several occasions now to enable us to reduce the burden on the Members.
Nevertheless, approximately half of our current 3% subscription rate is used to provide an indefinite commitment to a subsistence program that allows any 49er under age 55 to request assistance of up to HKD 25,000 per month.
Whilst your Committee strongly believes we should continue to financially assist the 49ers, having now provided subsistence for over three and a half years and in light of the ongoing uncertainty of when a resolution will be found, we believe we should seek to define a reasonable time limit on continued subsistence, and the level that Members are prepared to support . On the expiry of this period the Membership would be able to review its commitment.
Therefore the GC will provide an option for you to do this through a levy. As funds raised through levies are directed at their sole purpose, should further ‘belt tightening’ or reduced demand lead to a surplus, it can easily be identified and returned to the Membership.
ACTIONS
After a full consideration of all factors, your Committee has decided upon the following actions:
1. Reduce the subscription rate to 1.5% wef 1st May 2005.
2. Convene an EGM to debate and vote on a series of motions on raising levies to cover most 49er related costs, including continued funding of the legal actions.
3. Only in the event that funding for the legal actions is not mandated by the Membership, reconsider the Company Offer.
EGM MOTIONS
Motion 1 – LEVY TO FUND LEGAL ACTIONS
Be it resolved that the Association will continue to fund the ongoing legal actions relating to the 49er dismissals for those plaintiffs whom it represents, and to that end the following levies will be raised and payable in addition to basic subscriptions:
A levy of up to twelve (12) months subscriptions (at the level of 1.5% of basic salary) to be payable in equal monthly installments commencing on 1st July 2005; plus.
A levy of up to twenty four (24) months subscriptions (at the level of 1.5% of basic salary), to be raised as and when required to cover any additional costs of the actions.
Such levies will be payable by Full Members who are Members of the Association on 1st June 2005 or former Members who subsequently rejoin.
These levies would raise a funding guarantee that would ensure that the actions could be brought to a conclusion without exposing the Association or individual 49ers to the potential of a massive financial liability. If it eventuates that the full amount of the levies are not required after they have been raised, the unused portion will be returned to you, as provided under the Rules.
Motion 2 – LEVY TO MAINTAIN CURRENT 49ER SUBSISTENCE LEVELS
Be it resolved that the Association will continue to provide current levels of subsistence and medical coverage to any 49er requesting such assistance, for a period of up to twelve (12) months, and to that end the following levy, payable in addition to basic subscriptions, will be raised:
A levy of up to twelve (12) months subscriptions (at the level of 1.5% of basic salary), to be payable in equal monthly installments commencing on 1st July 2005.
This levy will be payable by Full Members who are Members of the Association on 1st June 2005 or former Members who subsequently rejoin.
Current subsistence arrangements provide for any 49er below retirement age to request assistance up to the amount of HKD 25,000 per month. When combined with the new basic subscriptions rate of 1.5% this proposed levy would equate to our current subscriptions level of 3% and reflects the fact that 49er subsistence currently accounts for approximately half of our annual expenditure.
The continuance of this subsistence for a further limited period would provide much appreciated stability and reassurance to the 49ers and their families as they deal with the uncertainty of the immediate future. Your Committee urges you to continue supporting this level of subsistence. Should further belt tightening, or reduced demand result in a surplus, this surplus will be returned to you, as provided under the Rules.
Motion 3 – TO CONTINUE 49ER SUBSISTENCE WITHIN RESOURCES
It is important to note that Motion 3 will only become effective in the situation where Motion 2 has failed. However, you will need to submit a vote on this motion and your vote on this motion should assume that Motion 2 has failed.
Be it resolved that the Association will continue to provide subsistence and medical coverage to 49ers within available resources, for a period of up to twelve (12) months. Be it further resolved that this motion will only be effective if Motion 2 fails.
Your Committee has asked that you continue supporting the current levels of subsistence for a limited period through a positive election for Motion 2. However, should you feel unwilling to continue to fund that level of support, your Committee would urge you to at least give your support to the continuation of subsistence payments in some form. In that situation, we would have to manage our available resources through the introduction of significantly more stringent criteria than those that currently exist.
Motion 4 – TO ACCEPT COMPANY OFFER
It is important to note that Motion 4 will only become effective in the situation where Motion 1 has failed. However, you do need to submit a vote on this motion and your vote on this motion should assume that Motion 1 has failed.
Be it resolved that the Membership of the Association accepts the Company Offer of 14th December 2004 on the 49ers. Be it further resolved that this motion will only be effective if Motion 1 fails.
In the situation where Motion 1 fails, the Association will have decided to discontinue support of the legal actions and acceptance of the Offer would seem to be the only sensible alternative remaining for the Association. Therefore, regardless of how you vote on the Legal Funding motion, we believe you should strongly consider voting for acceptance of the Offer on this occasion. This would allow those 49ers who wish to do so to accept the Offer, and those who do not to retain their right to continue with the legal actions on an individual and self funded basis.
SUMMARY
There is no doubt that the realities of our situation have conspired to place us in a difficult position and no path forward exists that will fully satisfy all Members. Moreover, we are faced with difficult choices that will require significant commitment or compromise.
We are certain that the outcome of the vote on the Offer has created the potential for a very real Membership crisis within our Association. Whilst obtaining a resolution to the 49er situation and taking care of their welfare remain very high priorities for your Committee, we are now required to provide the Membership with an opportunity to clearly indicate to what extent they are prepared to continue funding their Association and the needs of the 49er cause. Simply put, Members are the Association’s lifeblood and we are only as effective as the size of our Membership and their commitment allows.
In the circumstances, your Committee and I have striven to provide you with a clear description of the challenges that face us going forward. We believe that the result of the vote on these motions will provide the clearest possible indication as to the direction that is supported by the majority of the Membership. This is the direction that is most likely to further the interests of the 49ers and of your Association.
We ask for respectful and constructive debate, and we urge you to remain informed, during the period leading up to the EGM, which will be held in the middle of April.
Sincerely
President
04 March 2005
Dear Committee
Thank you for your reply to my earlier letter, dated 17th February, which contained the following text:
“…it remains the policy that such budgetary matters are confidential to the GC. However, I can assure you that the answers provided to you at the EGM were correct based on the information recently provided to me by both the Treasurer and the Administrator. Could I further assure you that all members will be provided with all information necessary to make fully informed decisions on any motions relating to cost issues going forward.”
I have read your newsletter dated 4th March 2005, that explains that your priority is to continue the legal funding by introducing Special Levies amounting to HK$48million. That equates to me paying HK$102,360. I’m afraid that you have given absolutely no explanation of the mathematics involved, so I have not been “provided with all information necessary”.
Please answer the following:
1. The current annual income of the HKAOA is approximately HK$24m i.e. approximately HK$2m per month at 3% subs. From Special Levies 1&2 (Motion 1), you will raise HK$12m and HK$24m, respectively. You stated earlier that you needed HK$30m. Why have you increased this to HK$36m?
2. If the court cases are not scheduled to finish until the end of 2006, or longer including separate damages hearings, why not raise Special Levy 1 over 18months or even 2 years i.e. a final levy of perhaps 0.75% coinciding with date of actual payment?
3. You are allowing for CX costs to be broadly equivalent to ours. Assuming that we will spend HK$12m + HK$13m, CX costs will be _HK$25m. Indeed, Special Levy 2 equates to HK$24m. However, costs are awarded at _70%, therefore the probable liability = HK$17.5m. Why raise an extra HK$7.5m?
4. Item (3) assumed that CX will win in all 3 jurisdictions and they “pay into court” in all 3 jurisdictions – otherwise we are not liable for their costs. If CX “pay into court” and lose then they will still be liable for our costs to date (70% x HK$12m = HK$8.5m). As the lawyers are confident in all jurisdictions, the more likely exposure is 17.5 – 8.5 = HK$9m, therefore why budget for HK$25m?
5. The Committee has previously given direction on all Motions yet no direction is given on Motion 1. Does the Committee urge us to vote for or against Motion 1?
6. You state that staff costs have been “benchmarked”. What other pilots’ unions pay a basic salary of >HK$1.3m for a General Secretary and have less than 1000 members?
7. Why do we need a General Secretary and an Assistant General Secretary when membership numbers have fallen by a third? As the industrial climate is more straightforward now, why not just have an Asst GenSec?
8. When did the 49er Objective become “to get the best possible outcome”?
9. Today, the lowest Seniority number is 1760. There are 123 ASL crew including 61 Flight Engineers. The Association has 9 Associate Class A members. Please explain:
The Association currently has 925 Members. There are 1912 pilots in Cathay Pacific.
10. You appear to have reduced subs because of adverse membership input indicating they will leave. Which gives more income:
a. 875 members paying 1.5% or
b. 825 members paying 3%?
11. Please confirm that that an EGM is required to have a Rule change? When are you going to change the levels in Rule 6.3?
Yours sincerely
This from another forum:
Is that true the general secretary gets paid 1.3million a year? That\'s more than a B scale captain. Does IFALPA pay that sort of money? Sounds way over the top. Now that we give in to whatever cx wants why do we need a general secretary?
If they\'re serious about saving money then there\'s a straight $1.3million saving.
10th March 2005
APRIL EGM
Gentlemen
I write to you all regarding the upcoming EGM scheduled for April in which a number of motions regarding financial assistance to the 49ers are intended to be tabled. Naturally this is a matter of the utmost importance, not only for the 49ers but for the Membership as a whole.
There exists a concern that there are a number of recent developments of which you may not be aware and, therefore, that may not have been taken into account during your deliberations prior to deciding upon the current course of action. Some of these are summarised below.
1. Australian Court Case
At a directions hearing held at the end of February last, the judge set a court date of 6th March 2006 for the case to be heard and set aside 4 weeks for the hearing. This hearing will rule on all matters, both substantive and jurisidictional. In addition, she also set a very detailed timetable of procedural steps to be completed between now and the hearing itself. Now that a specific timetable for this case is available, this facilitates the construction of a more accurate cash flow and business plan regarding possible funding requirements
2. UK Court Case
The case in the Appeal Court is to be heard on either Monday 14th March or Tuesday 15th March 2005 in the Royal Courts of Justice, The Strand, London. This will determine once and for all the issues of jurisdiction. The only possible further avenue of appeal available to either party is the highest court in the land, the House of Lords. In any event, the hearing in the Appeal Court will make case law and set precedent. This is a very significant development on its own. In addition, however, it also has a direct bearing on possible future funding requirements depending on the outcome. Therefore, the view can be held that it would be premature to make irrevocable decisions on funding matters until the result of this hearing is known.
3. Supplementary Funding
Very recently, an independent sponsor has come forward and offered substantial funding for the purpose of assisting with financing the legal actions should this be required. Negotiations on this offer are at an advanced stage and should be completed within the next 3 to 4 weeks. Given that the GC is presently considering a financial plan for the way forward, this is obviously a significant development which should be taken into account.
4. Membership
A significant number of Members, have approached the 49ers and given undertakings to the effect that, should the Association decide to cease funding assistance, they will leave the Association and pay the equivalent of their membership dues directly to the 49ers in order that financial assistance may continue. In addition, it is understood that plans are already in hand to set up an alternative union in such a situation. This is a very serious matter and has significant ramifications for the future viability of the Association itself given that its Membership and finances are already depleted.
Might I suggest that an evaluation of these and other matters be completed by a sub-committee and its report be circulated to the Membership for consideration prior to any irrevocable motions being put to the vote. Might I also suggest that the sub-committee consist of 6-persons: two General Committee Members, two 49ers and two other Full Members; one each “other Full Member” to be chosen by the General Committee and the 49ers respectively, although each may be neither a General Committee Member nor a 49er.
It is strongly recommend that until the General Committee has had the opportunity to properly evaluate these matters, it would be entirely inappropriate for the Membership to be asked to decide on the need for special levies.
Yours sincerely
Guest
Posts: n/a
"The lawyers are confident in all jurisdictions"................quote..........ever met a lawyer who'll tell you your case is crap ??? He's in Business like everyone else, he'll tell you what you want to hear !!!!, so why bother to make provision for anything ??? I mean the lawyers are confident, so whats the problem ???
The problem is that going to court is the same as rolling dice, you win some, you loose some, in fact more often than not you loose.....................................
so, the best way forward would be to accept the company offer and let everyone get on with their lives !!!!!
The problem is that going to court is the same as rolling dice, you win some, you loose some, in fact more often than not you loose.....................................
so, the best way forward would be to accept the company offer and let everyone get on with their lives !!!!!
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Court Cases
AUSTRALIA LEGAL UPDATE
A directions hearing was held at the end of February in SYD to set court dates and determine the timetable
for the remaining steps to be completed prior to the trial. The following are excerpts from the judge's
directions:
1. All matters (including the proceedings remitted from the High Court) to be heard together;
2. That the evidence in each matter, so far as it is relevant, be evidence in each other matter;
3. That discovery in each matter, so far as it is relevant, be discovery in each other matter;
This means that contrary to the defendant’s petitions and appeals in both the Industrial Relations
Commission (IRC) and the High Court, the substantive matters (i.e. the facts surrounding the purported
dismissals) and jurisidictional matters will be heard be heard together at the same time and become a matter
of public record.
4. By 8 April 2005 the defendants must file and serve their Reply (i.e. their defence);
5. By 6 May 2005 the plaintiffs must file and serve a Response to the Reply;
6. By 13 May 2005 both parties must apply to the Commission for an order for discovery;
7. The plaintiffs must file and serve all affidavits to be relied upon in evidence by 1 August 2005;
8. The defendants must file and serve all affidavits to be relied upon in reply by 1 October 2005;
9. The plaintiffs must file and serve all affidavits in response to the defendant's affidavits by 21
October 2005;
10. Within 14 days of all affidavit material having been filed, the plaintiffs must serve a list of all
documents on which we intend to rely by way of evidence in the proceedings on all parties;
11. Within 14 days of the receipt of that list, the defendants must serve on us a list of any additional
documents on which they intend to rely by way of evidence in the proceedings;
12. Thereafter, within a further period of 14 days, both parties must advise all other parties as to which
of the documents contained in each list will be the subject of consent to become evidence in the
proceedings;
13. Within a further period of 14 days the plaintiffs must prepare, file and serve a Court Bundle of all
documents which are by consent to become evidence in the proceedings and, in another section, all
documents which both parties seek to become evidence in the proceedings but the tender of which is
opposed;
This timetable takes us to the end of December.
Four weeks has been set aside by the Commission to hear our unfair contract claims, commencing on
6 March 2006.
Whilst this date is one year away, this was necessary in order to provide an appropriate amount of time for
the procedural matters to be attended to (as above), and was the first available time in her Honour's diary
for a four week trial.
To quote our lawyers, "We are now firmly on track for determination of your unfair contract claims."
We now have a fixed timetable and a court date set for Australia. This is very positive news and belies
some predictions that this case was at least 2 years or more away from being heard. It also means that an
accurate cash flow prediction of the probable costs leading up to the case can now be prepared.
As you know, to date we have been successful in every hearing that has been held in Australia in both the
IRC and the High Court. We have also been awarded costs each time and have recovered 80% of our costs
to date.
7th March 2005
UK LEGAL UPDATE
The cases filed in the UK Employment Tribunal (ET) were originally challenged by the defendants on the
basis that the ET did not have jurisdiction to hear the cases. In the first hearing the ET ruled that it does
have jurisdiction to hear the cases filed by the Veta employees who are resident in the UK. The defendants
appealed this decision to the Employment Appeals Tribunal (EAT). Because of developments in case law
in another case (Serco vs Lawson), the EAT referred the matter back to the ET to be heard afresh. Rather
than go back to the ET, it was agreed that the matter should be passed up to the Court of Appeal.
The case was heard by a bench of three judges chaired by the Master of the Rolls, Lord Phillips, with Lord
Justices Waller and Maurice Kay in attendance at the Royal Courts of Justice in the Strand on 14th & 15th
March 2005. The fact that the case was heard by the Master of the Rolls indicates the seriousness with
which the court views these matters. Unlike the ET and/or EAT, any judgement by the Court of Appeal will
set precedent and become case law.
Another case dealing with similar matters (Botham vs Ministry of Defence) was heard alongside our own.
Rather than being subject to a full hearing, this case was passed up to the House of Lords, the highest court
in the UK, for hearing together with Serco vs Lawson. Our own case, however, was subject to a full hearing
in the Court of Appeal.
Whilst there are similarities between our own case and Serco vs Lawson & Botham vs MoD, the principal
and significant difference is that the latter 2 actions are being brought by employees wholly resident outside
the UK (Ascension Island and Germany respectively) against UK government departments. In our case, the
action is brought by UK residents against an overseas based company that has a place of business in the
UK.
The hearing commenced at 10:30 on 14th March and finished at 13:30 on 15th March. Our barrister
presented our case first, the defendant’s barrister then presented their case and our barrister then responded.
The arguments centred around whether or not the original ET had erred in its ruling. Much of the debate
was on dry legal points that do not bear amplification in this report. There were some interesting
developments, however.
The respondent’s barrister made some statements that were factually incorrect. He stated that the Veta
employees were paid in HKD, that there were no separate pay scales for the various base areas and tried to
infer that the pilots did not pay tax in the UK. These statements were refuted by our barrister and led the
bench to ask for copies of the full contracts of employment and the Basings Agreement to be provided for
reference during their deliberations. Up until this point, only certain extracts from these documents had
been entered into evidence. Our barrister was pleased with this development.
The defendant’s barrister, on advice from a member of Cathay Pacific management who was present at the
hearing, also told the court that it was illegal for any air carrier to operate an aircraft that was not registered
in its own state of registry. Her lack of knowledge in this area was brought to the court’s attention.
The bench reserved its judgement to be handed down at a later date. Our barrister is hopeful that this will
be delivered before the Easter recess.
The Court of Appeal’s decision can be further appealed by either party to the House of Lords which is the
final arbiter in all legal matters in the UK. Should this happen the process will be relatively rapid as the
case would be heard jointly with Serco vs Lawson & Botham vs MoD both have which already been listed.
Our solicitor advises that the likely cost of such an appeal would be from GBP45,000 to GBP 60,000
depending on how many counsel we were to employ. A costs order for the current appeal will be made
when the court hands down its ruling but, should the matter go to the Lords, the order may be deferred
pending the outcome in that forum.
17th March 2005
A directions hearing was held at the end of February in SYD to set court dates and determine the timetable
for the remaining steps to be completed prior to the trial. The following are excerpts from the judge's
directions:
1. All matters (including the proceedings remitted from the High Court) to be heard together;
2. That the evidence in each matter, so far as it is relevant, be evidence in each other matter;
3. That discovery in each matter, so far as it is relevant, be discovery in each other matter;
This means that contrary to the defendant’s petitions and appeals in both the Industrial Relations
Commission (IRC) and the High Court, the substantive matters (i.e. the facts surrounding the purported
dismissals) and jurisidictional matters will be heard be heard together at the same time and become a matter
of public record.
4. By 8 April 2005 the defendants must file and serve their Reply (i.e. their defence);
5. By 6 May 2005 the plaintiffs must file and serve a Response to the Reply;
6. By 13 May 2005 both parties must apply to the Commission for an order for discovery;
7. The plaintiffs must file and serve all affidavits to be relied upon in evidence by 1 August 2005;
8. The defendants must file and serve all affidavits to be relied upon in reply by 1 October 2005;
9. The plaintiffs must file and serve all affidavits in response to the defendant's affidavits by 21
October 2005;
10. Within 14 days of all affidavit material having been filed, the plaintiffs must serve a list of all
documents on which we intend to rely by way of evidence in the proceedings on all parties;
11. Within 14 days of the receipt of that list, the defendants must serve on us a list of any additional
documents on which they intend to rely by way of evidence in the proceedings;
12. Thereafter, within a further period of 14 days, both parties must advise all other parties as to which
of the documents contained in each list will be the subject of consent to become evidence in the
proceedings;
13. Within a further period of 14 days the plaintiffs must prepare, file and serve a Court Bundle of all
documents which are by consent to become evidence in the proceedings and, in another section, all
documents which both parties seek to become evidence in the proceedings but the tender of which is
opposed;
This timetable takes us to the end of December.
Four weeks has been set aside by the Commission to hear our unfair contract claims, commencing on
6 March 2006.
Whilst this date is one year away, this was necessary in order to provide an appropriate amount of time for
the procedural matters to be attended to (as above), and was the first available time in her Honour's diary
for a four week trial.
To quote our lawyers, "We are now firmly on track for determination of your unfair contract claims."
We now have a fixed timetable and a court date set for Australia. This is very positive news and belies
some predictions that this case was at least 2 years or more away from being heard. It also means that an
accurate cash flow prediction of the probable costs leading up to the case can now be prepared.
As you know, to date we have been successful in every hearing that has been held in Australia in both the
IRC and the High Court. We have also been awarded costs each time and have recovered 80% of our costs
to date.
7th March 2005
UK LEGAL UPDATE
The cases filed in the UK Employment Tribunal (ET) were originally challenged by the defendants on the
basis that the ET did not have jurisdiction to hear the cases. In the first hearing the ET ruled that it does
have jurisdiction to hear the cases filed by the Veta employees who are resident in the UK. The defendants
appealed this decision to the Employment Appeals Tribunal (EAT). Because of developments in case law
in another case (Serco vs Lawson), the EAT referred the matter back to the ET to be heard afresh. Rather
than go back to the ET, it was agreed that the matter should be passed up to the Court of Appeal.
The case was heard by a bench of three judges chaired by the Master of the Rolls, Lord Phillips, with Lord
Justices Waller and Maurice Kay in attendance at the Royal Courts of Justice in the Strand on 14th & 15th
March 2005. The fact that the case was heard by the Master of the Rolls indicates the seriousness with
which the court views these matters. Unlike the ET and/or EAT, any judgement by the Court of Appeal will
set precedent and become case law.
Another case dealing with similar matters (Botham vs Ministry of Defence) was heard alongside our own.
Rather than being subject to a full hearing, this case was passed up to the House of Lords, the highest court
in the UK, for hearing together with Serco vs Lawson. Our own case, however, was subject to a full hearing
in the Court of Appeal.
Whilst there are similarities between our own case and Serco vs Lawson & Botham vs MoD, the principal
and significant difference is that the latter 2 actions are being brought by employees wholly resident outside
the UK (Ascension Island and Germany respectively) against UK government departments. In our case, the
action is brought by UK residents against an overseas based company that has a place of business in the
UK.
The hearing commenced at 10:30 on 14th March and finished at 13:30 on 15th March. Our barrister
presented our case first, the defendant’s barrister then presented their case and our barrister then responded.
The arguments centred around whether or not the original ET had erred in its ruling. Much of the debate
was on dry legal points that do not bear amplification in this report. There were some interesting
developments, however.
The respondent’s barrister made some statements that were factually incorrect. He stated that the Veta
employees were paid in HKD, that there were no separate pay scales for the various base areas and tried to
infer that the pilots did not pay tax in the UK. These statements were refuted by our barrister and led the
bench to ask for copies of the full contracts of employment and the Basings Agreement to be provided for
reference during their deliberations. Up until this point, only certain extracts from these documents had
been entered into evidence. Our barrister was pleased with this development.
The defendant’s barrister, on advice from a member of Cathay Pacific management who was present at the
hearing, also told the court that it was illegal for any air carrier to operate an aircraft that was not registered
in its own state of registry. Her lack of knowledge in this area was brought to the court’s attention.
The bench reserved its judgement to be handed down at a later date. Our barrister is hopeful that this will
be delivered before the Easter recess.
The Court of Appeal’s decision can be further appealed by either party to the House of Lords which is the
final arbiter in all legal matters in the UK. Should this happen the process will be relatively rapid as the
case would be heard jointly with Serco vs Lawson & Botham vs MoD both have which already been listed.
Our solicitor advises that the likely cost of such an appeal would be from GBP45,000 to GBP 60,000
depending on how many counsel we were to employ. A costs order for the current appeal will be made
when the court hands down its ruling but, should the matter go to the Lords, the order may be deferred
pending the outcome in that forum.
17th March 2005