The 49ers and Related Issues(Merged)
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Letter from a 49er
Interesting reading.
Dear fellow Member,
There is an issue upon us and I would like to add my voice to the debate that from what I have seen has been thus far somewhat starved of real information. Those of you that know me are aware of my belief in vigorous debate and the importance of the transparent function of our union.
Those of you who do not know me will wonder about my background. I joined our union shortly after being employed by Cathay in late 1995 and have been a Member in good standing ever since. I became a General Committee Member of our union in 1999 and a Principal Officer later that year. I have also served as a Rostering Practises negotiator and Vice-President Professional.
On 9th July 2001 I was purportedly terminated and became a 49er. The sum total of the evidence provided by the Defendant in my case to explain why I was terminated is the phrase “generally uncooperative”. I do not believe that I will see the inside of a court room to test this bizarre evidence and nor does my lawyer – it is important that you know that does not bother me.
My words here are my own and I do not assert to represent the views of other 49ers. Please feel free to pass on this letter to fellow Members if you feel that it may be useful.
What does the General Committee say?
The ‘49er offer’ negotiations between the General Committee (GC) and management were conducted in secret and as a consequence there was no consultation between the GC and the 49ers or their nominated 49er Legal Team. This is unfortunate as it would seem an important omission when attempting to negotiate a resolution on their behalf. Consultation certainly may have avoided the feeling of isolation from the GC that many 49ers have recently voiced.
The GC has stated that it is their opinion that this is the “final offer”.
The GC has stated that their decision is based on financial aspects and that the Membership has done enough. The GC would like us all to move forward. 49ers have witnessed the General Secretary suggesting to Members that the financial liability to our union is HKD$20M. This dire assertion is at best a misunderstanding on behalf of the General Secretary and requires further analysis. Certainly those whose task it has been to assess these things for 3 ½ years on behalf of our union do not agree this is an opinion that would survive scrutiny.
It appears to be a strong possibility that certain assumptions driving GC policy at the moment require further qualified input. Transparency is always a good thing for a union and I submit that in playing out any possible 49er resolution our union needs to be sure that it is getting it right. That will need a little more time than we have all been given.
What does the Company say?
The DFO has released a statement on the 49er offer that does not appear to have been recognised for some of the things that it has said. There is a statement that a pot of money is being given to the GC and they alone have discretion as to how it is used. This money apparently equates to what management expect to expend on their lawyers getting to court. Clearly this is a win-win-win situation for management.
Management will in one stroke hand the responsibility and liability for the political issue of the 49er resolution to the GC. Management, and the GC, require the 49ers to unilaterally withdraw their lawsuits and decide to do that without having any protection whatsoever. Once withdrawn these cases are not able to be resuscitated and the GC will have cut-off financial support. Remember this is supposed to be the first step in the process and for some reason the 49er is expected to take all the risk.
While considering such a risky decision, the latest rumour doing the rounds has the DFO now saying only 6 or 7 49ers will be offered jobs. Rumour is exactly that however we are all aware of the DFO’s ability at projecting his message and it is often the case that he is accurately quoted – if only because he works at it.
What is the ‘offer’?
This is not completely clear to many, if any, of the 49ers. Judging by the mixed messages coming from various GC Members it does not appear to be completely clear to them either. What is clear is that this is not a ‘settlement offer’ as many have presumed it to be. What we have thus far is little more than a side negotiation between the Defendant and a third party – in this case the AOA President. This is important to note because the deal has been represented as, and appears to be assumed to be, something quite different. This is NOT a ‘settlement’ offer in its current form.
There are 2 ways that a Plaintiff can shut down a case such as ours. First option is the Plaintiff decides not to proceed with the case and the lawsuit is withdrawn. This option effectively means that the case is dead and would be almost impossible to resuscitate. It also does not require any input to the process from the Defendant.
The second option is that the Plaintiff and the Defendant, usually via their respective legal counsel, agree to an ‘out of Court settlement’. This form of settlement is binding on both parties and the agreement formalising the settlement is to be "entered into Court". Any failure to observe the terms and agreements by either party would be actionable under the law.
Right now we have no formal offer from the Defendant’s lawyers. We are therefore not in negotiation with the Defendant – only the President is. This means if we were to proceed with this current offer it would require us as Plaintiffs to withdraw our lawsuits unilaterally based on assurances made to a third party by the Defendant – this is the first option scenario given above.
Basically management has said to our President, if you can persuade the 49ers to unilaterally drop their lawsuits against us as a first step, we’ll interview the ones that want a job and give you a pot of money. It’ll be at our sole discretion whether we take any and it is at your sole discretion what you do with that pot of money.
Several other issues appear to be unfinished in the current offer such as Travel and Accommodation benefits - which are currently said to be non-existent. The General Secretary has recently stated that the GC is still sorting these issues out with management. To some this indicates that the negotiation is ongoing and that the “final offer” is in fact more ‘in play’ than represented to us 49ers. Of course this only adds to the confusion and anxiety when making this critical decision.
As another example of the apparent incompleteness of the offer, an issue apparently not fully considered by the GC is the implication that there are no freighter slots available in Australia. Most of the Australian 49ers are not able to domicile in Europe or NAM so that leaves HK. As a Year 1 Freighter F/O flying an Australian Based roster out of HK, therefore liable for either or both HK and Australian Tax and with benefits such as Travel and Accommodation not available, the net pay is likely zero. A returning 49er with a family could not afford to have his family in HK or commute. It gives rise to the growing impression that the re-employment aspect of the offer is not serious.
Put simply, the 49ers have received newsletters about a deal from the GC however at the time of writing we have no formal offer to consider. We have more questions than answers. Creating further angst is the fact that at a meeting especially held for the 49ers to meet with the GC and discuss the ‘offer’, the General Secretary prohibited the GC Member present from answering questions from the 49ers on five occasions. To summarise, the 49ers have no formal offer in writing to give to their lawyers and get advice, important elements of the ‘final offer’ are still in negotiation and important questions are not allowed to be answered by their GC.
Most importantly, this is far from a true offer to settle out of court. It is an attempt by the Defendant to get the GC to get the 49ers to unilaterally withdraw their lawsuits.
The timing, the Deadline and selling the unsaleable offer
Given that this issue has gone for over 3 ½ yrs now; why is there now such hurry? Why over Christmas/NY and such a short deadline. Given the ongoing confusion and continued requirement for clarification of important elements of the apparent deal it appears to be premature to go public until the ‘offer’ is thoroughly understood. The normal custom and practise in our Association is that our Membership is not asked to consider such important issues until that work is done.
Apparently the intended date was to be the Monday before Christmas, then a period which straddles Christmas and New Year, before an irrevocable decision is required from the 49ers by the 20th January an exact month later. Something happened that caused the GC to release the information a few days earlier.
The day before the GC ‘final offer’ newsletters were sent to the 49ers was a complete contrast. We had received uplifting news via our 49er Legal Team of a Judge’s decision in the Sydney case. It was a huge win of that stage of the case finally ending all the possible delays employable by the Defendant. Significantly ‘costs’ were awarded against the Defendant also which means that despite much work done by the 49er lawyers there, Australia has been extraordinarily cheap thus far for us – and extraordinarily expensive for the Defendant. Unfortunately the jubilation over this welcome news was short lived due to the release of the GC newsletter. The GC and the Membership appear mostly unaware of this significant legal news still.
The 49ers are being pressured into making an irreversible decision in minimum time and then the pressure will apparently be on the Membership to cut-off the funding. The General Secretary emphatically stated at a formal meeting of 49ers, whose lawyers were also present, that whatever the collective decision of the 49ers the GC will still recommend that the funding be cut-off from the 49ers. This may explain why the GC did not bother to consult the 49ers beforehand and is apparently not going to be influenced by the 49ers now – they made up their mind a long time ago about this issue.
The management of the big sell by our GC gives the impression of desperation and the timing smacks of cynical and calculated politics. Many 49ers have expressed their disappointment over a feeling of being ‘dead-lined’ by their own GC.
...cont\'d
What the 49er lawyers say
Some recent advice given by the 49er lawyers was based on a ‘hypothetical’ brief given by the GC of what an offer may include. The lawyers have not, in fact, had a formal ‘offer’ to consider and give advice.
Initial drafts using words like ‘good chance’ were toned down to say ‘moderate chance’. When I asked a leading 49er lawyer what would be the highest percentage chance he would ever give in writing his reply was 75% - this did not surprise me as this is the percentage that he put in the advice. He confirmed to me that 75% was as high as any smart lawyer should write and that he still considered our case so strong that he thought that “it would never see the inside of a courtroom”. Meaning that he expected the Defendant to settle when the time suits them.
The lawyers were not aware that the advice sought by and given to the General Secretary was to be kept secret from the 49ers. After all the 49ers are their own clients – the actual Plaintiffs in the action. The lawyers have delivered a robust advice which is quite readable to many who have had the misfortune to require legal advice. It is not surprising that it may require explanation when read by most of us who typically otherwise interpret lawyer-speak quite grimly. The letter from the General Secretary secretly seeking this advice from the 49er’s lawyers does in fact request that the lawyers frame this advice to emphasise a “stark” scenario i.e. worst case. However a few 49er lawyers that I have spoken to personally have expressed their disappointment at being used by the GC as a political tool against their own clients – the 49ers. Further, they have re-confirmed that they do not believe that the Defendant will allow the cases to go to court.
It is still the case that the 49ers, their lawyers, and apparently the GC still do not have an actual formal offer to consider. It is not surprising then that 49er lawyers have stated that they advised the 49ers strongly against signing or agreeing to anything until a formal offer can be considered. They have also stated that they would be pushing to ensure standard protections were included in any potential agreement to protect their clients – the 49ers.
What do we need as an Association?
I suggest that we are being pushed as a Membership into making a decision without the required complete information. The spin being put about regarding the 49ers legals is exactly that – spin. These cases have taken over 3 ½ years to evolve and require the ongoing attention of a Team of motivated and intelligent men in consultation with lawyers from four jurisdictions. It is not possible that the GC understands the 49er legal cases to a satisfactory level because they do not attend the Plaintiff/49er legal Team briefings and they have not consulted with the 49er Legal Team. The advice given in these cases is ‘privileged’ and therefore it necessarily must be protected. It is therefore less likely that the Membership has a superior understanding of the 49er legals than that of the GC. That would be especially difficult as various positive 49er legal results and developments reported to the GC for relay to the Membership as a whole still await dissemination.
Did you know for example that in Australia the Defendant has had to pay our lawyers fees to date due to consistent findings against them by Judges? Did you know that our lawyers in the US – a case which has been stayed rather than lost as some have been led to believe – costs us nothing because the 49ers lawyers there believe in the case so much that they work it pro bono. There are several disingenuous arguments around regarding the past and future 49er legal funding which are inappropriate and confusing. Yet this is one of the current leading arguments why the GC wants the Membership to cut-off the 49er funding.
I suggest that the future of our union is inextricably linked to the 49ers. The 49ers were used as a tool against the Membership and no amount of rationalisation or time passed will change that fact. The Membership will decide it’s principles for itself and that will become the measure of the protection our union can be expected to provide in the future. It is not realistic to expect complete capitulation by management and that we all live happily ever after. Nor is it reasonable to forsake the 49ers in order to declare that a negotiation came to a successful conclusion because a deal was agreed. It has been a painful experience for all involved and that fact alone demands that any resolution sensibly meets important objectives for all parties.
Sometimes we have to do what is right just because it is right. It is right to provide support for the 49ers as it is they who have been bearing the brunt of management’s attack on you and your family’s livelihood. It is right that the 49er issue is pursued legally and for the 49ers to be given the opportunity for legal representation – whether in court or to ensure a safe and sensible settlement. This has been an expectation of our Membership in the past and we have had success in cases not nearly as strong as the 49er cases.
What do the 49ers think?
I can only speak for myself and not the 49ers generally – and I would not presume to do so. In fact no one can do that including the GC, the Legal Team or anyone else. As individuals we have all had our own journeys and have different circumstances. We also have different expectations on what would be an acceptable resolution. I am sure most understand the need to find compromise and move on when it is sensible to do so.
After 3 ½ years many 49ers have exhausted their resources, depleted their retirement planning and their careers are in tatters. It is well within the capacity of management to ensure that the re-employment option is a realistic and workable option, or that the financial settlement allows the 49er to move forward without bitterness. Management’s objective of having the court cases off their radar screen and the dispute essentially behind them can be met.
A final thought on this point. This is perhaps the biggest issue our union has had to face. We of all employee groups understand that there is good reason to have union protection in Hong Kong. There is no urgency to force an error on this important issue as there are no large expenditures in Court or other dramatic events in the next couple of months. We are however getting closer to the end game from a legal point of view and our airline needs to prepare itself for the next busy era. The 49ers and their lawyers can handle their own negotiations to settle out these cases. I propose that we allow that.
What can you do?
This is an important issue and not one that you should take lightly. No other issue in the history of our union has needed your attention more as it will decide the future of our union’s integrity. I ask you to look deeper into this issue and apply your values based on a fully informed understanding.
To ensure a full understanding we Members must drive the debate and we must dictate to our GC what information we require and what time frame is acceptable to us. Otherwise how will they know? This may be one of those issues – and there have been plenty over the years - when the Membership saves the GC from itself.
In the ideal world for the 49ers the Membership would direct the GC to allow the 49ers to communicate directly with the Membership what their thinking is – without editorial interference. The Membership would direct the GC to continue to support the 49ers in their time of need for legal representation. I also suggest that we each contact the GC and inform them of our expectation that the various deadlines and EGM Motions be delayed until the issue has enjoyed sufficient scrutiny.
Please know that we 49ers are grateful for your support to get us this far. We are now within reach of the legal leverage that we have all worked so hard to gain. There is no reason to allow this approaching evolution to be denied to the 49ers and the Membership. We 49ers have managed to get ourselves this far because we have faith in the process and in you our fellow Members. We would like the opportunity to see this through and we ask you for your continued support.
Thank you.
Dear fellow Member,
There is an issue upon us and I would like to add my voice to the debate that from what I have seen has been thus far somewhat starved of real information. Those of you that know me are aware of my belief in vigorous debate and the importance of the transparent function of our union.
Those of you who do not know me will wonder about my background. I joined our union shortly after being employed by Cathay in late 1995 and have been a Member in good standing ever since. I became a General Committee Member of our union in 1999 and a Principal Officer later that year. I have also served as a Rostering Practises negotiator and Vice-President Professional.
On 9th July 2001 I was purportedly terminated and became a 49er. The sum total of the evidence provided by the Defendant in my case to explain why I was terminated is the phrase “generally uncooperative”. I do not believe that I will see the inside of a court room to test this bizarre evidence and nor does my lawyer – it is important that you know that does not bother me.
My words here are my own and I do not assert to represent the views of other 49ers. Please feel free to pass on this letter to fellow Members if you feel that it may be useful.
What does the General Committee say?
The ‘49er offer’ negotiations between the General Committee (GC) and management were conducted in secret and as a consequence there was no consultation between the GC and the 49ers or their nominated 49er Legal Team. This is unfortunate as it would seem an important omission when attempting to negotiate a resolution on their behalf. Consultation certainly may have avoided the feeling of isolation from the GC that many 49ers have recently voiced.
The GC has stated that it is their opinion that this is the “final offer”.
The GC has stated that their decision is based on financial aspects and that the Membership has done enough. The GC would like us all to move forward. 49ers have witnessed the General Secretary suggesting to Members that the financial liability to our union is HKD$20M. This dire assertion is at best a misunderstanding on behalf of the General Secretary and requires further analysis. Certainly those whose task it has been to assess these things for 3 ½ years on behalf of our union do not agree this is an opinion that would survive scrutiny.
It appears to be a strong possibility that certain assumptions driving GC policy at the moment require further qualified input. Transparency is always a good thing for a union and I submit that in playing out any possible 49er resolution our union needs to be sure that it is getting it right. That will need a little more time than we have all been given.
What does the Company say?
The DFO has released a statement on the 49er offer that does not appear to have been recognised for some of the things that it has said. There is a statement that a pot of money is being given to the GC and they alone have discretion as to how it is used. This money apparently equates to what management expect to expend on their lawyers getting to court. Clearly this is a win-win-win situation for management.
Management will in one stroke hand the responsibility and liability for the political issue of the 49er resolution to the GC. Management, and the GC, require the 49ers to unilaterally withdraw their lawsuits and decide to do that without having any protection whatsoever. Once withdrawn these cases are not able to be resuscitated and the GC will have cut-off financial support. Remember this is supposed to be the first step in the process and for some reason the 49er is expected to take all the risk.
While considering such a risky decision, the latest rumour doing the rounds has the DFO now saying only 6 or 7 49ers will be offered jobs. Rumour is exactly that however we are all aware of the DFO’s ability at projecting his message and it is often the case that he is accurately quoted – if only because he works at it.
What is the ‘offer’?
This is not completely clear to many, if any, of the 49ers. Judging by the mixed messages coming from various GC Members it does not appear to be completely clear to them either. What is clear is that this is not a ‘settlement offer’ as many have presumed it to be. What we have thus far is little more than a side negotiation between the Defendant and a third party – in this case the AOA President. This is important to note because the deal has been represented as, and appears to be assumed to be, something quite different. This is NOT a ‘settlement’ offer in its current form.
There are 2 ways that a Plaintiff can shut down a case such as ours. First option is the Plaintiff decides not to proceed with the case and the lawsuit is withdrawn. This option effectively means that the case is dead and would be almost impossible to resuscitate. It also does not require any input to the process from the Defendant.
The second option is that the Plaintiff and the Defendant, usually via their respective legal counsel, agree to an ‘out of Court settlement’. This form of settlement is binding on both parties and the agreement formalising the settlement is to be "entered into Court". Any failure to observe the terms and agreements by either party would be actionable under the law.
Right now we have no formal offer from the Defendant’s lawyers. We are therefore not in negotiation with the Defendant – only the President is. This means if we were to proceed with this current offer it would require us as Plaintiffs to withdraw our lawsuits unilaterally based on assurances made to a third party by the Defendant – this is the first option scenario given above.
Basically management has said to our President, if you can persuade the 49ers to unilaterally drop their lawsuits against us as a first step, we’ll interview the ones that want a job and give you a pot of money. It’ll be at our sole discretion whether we take any and it is at your sole discretion what you do with that pot of money.
Several other issues appear to be unfinished in the current offer such as Travel and Accommodation benefits - which are currently said to be non-existent. The General Secretary has recently stated that the GC is still sorting these issues out with management. To some this indicates that the negotiation is ongoing and that the “final offer” is in fact more ‘in play’ than represented to us 49ers. Of course this only adds to the confusion and anxiety when making this critical decision.
As another example of the apparent incompleteness of the offer, an issue apparently not fully considered by the GC is the implication that there are no freighter slots available in Australia. Most of the Australian 49ers are not able to domicile in Europe or NAM so that leaves HK. As a Year 1 Freighter F/O flying an Australian Based roster out of HK, therefore liable for either or both HK and Australian Tax and with benefits such as Travel and Accommodation not available, the net pay is likely zero. A returning 49er with a family could not afford to have his family in HK or commute. It gives rise to the growing impression that the re-employment aspect of the offer is not serious.
Put simply, the 49ers have received newsletters about a deal from the GC however at the time of writing we have no formal offer to consider. We have more questions than answers. Creating further angst is the fact that at a meeting especially held for the 49ers to meet with the GC and discuss the ‘offer’, the General Secretary prohibited the GC Member present from answering questions from the 49ers on five occasions. To summarise, the 49ers have no formal offer in writing to give to their lawyers and get advice, important elements of the ‘final offer’ are still in negotiation and important questions are not allowed to be answered by their GC.
Most importantly, this is far from a true offer to settle out of court. It is an attempt by the Defendant to get the GC to get the 49ers to unilaterally withdraw their lawsuits.
The timing, the Deadline and selling the unsaleable offer
Given that this issue has gone for over 3 ½ yrs now; why is there now such hurry? Why over Christmas/NY and such a short deadline. Given the ongoing confusion and continued requirement for clarification of important elements of the apparent deal it appears to be premature to go public until the ‘offer’ is thoroughly understood. The normal custom and practise in our Association is that our Membership is not asked to consider such important issues until that work is done.
Apparently the intended date was to be the Monday before Christmas, then a period which straddles Christmas and New Year, before an irrevocable decision is required from the 49ers by the 20th January an exact month later. Something happened that caused the GC to release the information a few days earlier.
The day before the GC ‘final offer’ newsletters were sent to the 49ers was a complete contrast. We had received uplifting news via our 49er Legal Team of a Judge’s decision in the Sydney case. It was a huge win of that stage of the case finally ending all the possible delays employable by the Defendant. Significantly ‘costs’ were awarded against the Defendant also which means that despite much work done by the 49er lawyers there, Australia has been extraordinarily cheap thus far for us – and extraordinarily expensive for the Defendant. Unfortunately the jubilation over this welcome news was short lived due to the release of the GC newsletter. The GC and the Membership appear mostly unaware of this significant legal news still.
The 49ers are being pressured into making an irreversible decision in minimum time and then the pressure will apparently be on the Membership to cut-off the funding. The General Secretary emphatically stated at a formal meeting of 49ers, whose lawyers were also present, that whatever the collective decision of the 49ers the GC will still recommend that the funding be cut-off from the 49ers. This may explain why the GC did not bother to consult the 49ers beforehand and is apparently not going to be influenced by the 49ers now – they made up their mind a long time ago about this issue.
The management of the big sell by our GC gives the impression of desperation and the timing smacks of cynical and calculated politics. Many 49ers have expressed their disappointment over a feeling of being ‘dead-lined’ by their own GC.
...cont\'d
What the 49er lawyers say
Some recent advice given by the 49er lawyers was based on a ‘hypothetical’ brief given by the GC of what an offer may include. The lawyers have not, in fact, had a formal ‘offer’ to consider and give advice.
Initial drafts using words like ‘good chance’ were toned down to say ‘moderate chance’. When I asked a leading 49er lawyer what would be the highest percentage chance he would ever give in writing his reply was 75% - this did not surprise me as this is the percentage that he put in the advice. He confirmed to me that 75% was as high as any smart lawyer should write and that he still considered our case so strong that he thought that “it would never see the inside of a courtroom”. Meaning that he expected the Defendant to settle when the time suits them.
The lawyers were not aware that the advice sought by and given to the General Secretary was to be kept secret from the 49ers. After all the 49ers are their own clients – the actual Plaintiffs in the action. The lawyers have delivered a robust advice which is quite readable to many who have had the misfortune to require legal advice. It is not surprising that it may require explanation when read by most of us who typically otherwise interpret lawyer-speak quite grimly. The letter from the General Secretary secretly seeking this advice from the 49er’s lawyers does in fact request that the lawyers frame this advice to emphasise a “stark” scenario i.e. worst case. However a few 49er lawyers that I have spoken to personally have expressed their disappointment at being used by the GC as a political tool against their own clients – the 49ers. Further, they have re-confirmed that they do not believe that the Defendant will allow the cases to go to court.
It is still the case that the 49ers, their lawyers, and apparently the GC still do not have an actual formal offer to consider. It is not surprising then that 49er lawyers have stated that they advised the 49ers strongly against signing or agreeing to anything until a formal offer can be considered. They have also stated that they would be pushing to ensure standard protections were included in any potential agreement to protect their clients – the 49ers.
What do we need as an Association?
I suggest that we are being pushed as a Membership into making a decision without the required complete information. The spin being put about regarding the 49ers legals is exactly that – spin. These cases have taken over 3 ½ years to evolve and require the ongoing attention of a Team of motivated and intelligent men in consultation with lawyers from four jurisdictions. It is not possible that the GC understands the 49er legal cases to a satisfactory level because they do not attend the Plaintiff/49er legal Team briefings and they have not consulted with the 49er Legal Team. The advice given in these cases is ‘privileged’ and therefore it necessarily must be protected. It is therefore less likely that the Membership has a superior understanding of the 49er legals than that of the GC. That would be especially difficult as various positive 49er legal results and developments reported to the GC for relay to the Membership as a whole still await dissemination.
Did you know for example that in Australia the Defendant has had to pay our lawyers fees to date due to consistent findings against them by Judges? Did you know that our lawyers in the US – a case which has been stayed rather than lost as some have been led to believe – costs us nothing because the 49ers lawyers there believe in the case so much that they work it pro bono. There are several disingenuous arguments around regarding the past and future 49er legal funding which are inappropriate and confusing. Yet this is one of the current leading arguments why the GC wants the Membership to cut-off the 49er funding.
I suggest that the future of our union is inextricably linked to the 49ers. The 49ers were used as a tool against the Membership and no amount of rationalisation or time passed will change that fact. The Membership will decide it’s principles for itself and that will become the measure of the protection our union can be expected to provide in the future. It is not realistic to expect complete capitulation by management and that we all live happily ever after. Nor is it reasonable to forsake the 49ers in order to declare that a negotiation came to a successful conclusion because a deal was agreed. It has been a painful experience for all involved and that fact alone demands that any resolution sensibly meets important objectives for all parties.
Sometimes we have to do what is right just because it is right. It is right to provide support for the 49ers as it is they who have been bearing the brunt of management’s attack on you and your family’s livelihood. It is right that the 49er issue is pursued legally and for the 49ers to be given the opportunity for legal representation – whether in court or to ensure a safe and sensible settlement. This has been an expectation of our Membership in the past and we have had success in cases not nearly as strong as the 49er cases.
What do the 49ers think?
I can only speak for myself and not the 49ers generally – and I would not presume to do so. In fact no one can do that including the GC, the Legal Team or anyone else. As individuals we have all had our own journeys and have different circumstances. We also have different expectations on what would be an acceptable resolution. I am sure most understand the need to find compromise and move on when it is sensible to do so.
After 3 ½ years many 49ers have exhausted their resources, depleted their retirement planning and their careers are in tatters. It is well within the capacity of management to ensure that the re-employment option is a realistic and workable option, or that the financial settlement allows the 49er to move forward without bitterness. Management’s objective of having the court cases off their radar screen and the dispute essentially behind them can be met.
A final thought on this point. This is perhaps the biggest issue our union has had to face. We of all employee groups understand that there is good reason to have union protection in Hong Kong. There is no urgency to force an error on this important issue as there are no large expenditures in Court or other dramatic events in the next couple of months. We are however getting closer to the end game from a legal point of view and our airline needs to prepare itself for the next busy era. The 49ers and their lawyers can handle their own negotiations to settle out these cases. I propose that we allow that.
What can you do?
This is an important issue and not one that you should take lightly. No other issue in the history of our union has needed your attention more as it will decide the future of our union’s integrity. I ask you to look deeper into this issue and apply your values based on a fully informed understanding.
To ensure a full understanding we Members must drive the debate and we must dictate to our GC what information we require and what time frame is acceptable to us. Otherwise how will they know? This may be one of those issues – and there have been plenty over the years - when the Membership saves the GC from itself.
In the ideal world for the 49ers the Membership would direct the GC to allow the 49ers to communicate directly with the Membership what their thinking is – without editorial interference. The Membership would direct the GC to continue to support the 49ers in their time of need for legal representation. I also suggest that we each contact the GC and inform them of our expectation that the various deadlines and EGM Motions be delayed until the issue has enjoyed sufficient scrutiny.
Please know that we 49ers are grateful for your support to get us this far. We are now within reach of the legal leverage that we have all worked so hard to gain. There is no reason to allow this approaching evolution to be denied to the 49ers and the Membership. We 49ers have managed to get ourselves this far because we have faith in the process and in you our fellow Members. We would like the opportunity to see this through and we ask you for your continued support.
Thank you.
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Cathay's Previous Dismissal
CATHAY PACIFIC AIRWAYS, LTD., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and MARTHA Z. SINGSON, respondents.
Martha Z. Singson was surprised with the suddenness of the notification but nonetheless acknowledged it. Later, she met with Nipperess and inquired of possible employment that entailed only ground duties within the company. She was advised to meet with certain personnel who knew of the employment requirements in other departments in the company, and to await a possible offer from the company.
On 20 December 1991 Singson filed before the Labor Arbiter a complaint against CATHAY for illegal dismissal, with prayer for actual, moral and exemplary damages and attorney’s fees. Efforts on initial settlement having failed, trial followed.
Robert J. Nipperress and Dr. John G. Fowler appeared as witnesses for CATHAY. Nipperess confirmed that the decision to retire respondent was made upon the recommendation of Dr. Fowler. In turn, Dr. Fowler testified that the affliction of respondent with asthma rendered her unfit to fly as it posed aviation risks, i.e., asthma disabled her from properly performing her cabin crew functions, specifically her air safety functions.
On the other hand, Singson presented herself and Dr. Benjamin Lazo, a doctor in the country specializing in internal medicine and pulmonary diseases. She denied being afflicted with asthma at any point in her life, while Dr. Lazo confirmed the same declaring that at the time of his examination of Singson he found her to be of normal condition.
On the basis of the evidence presented before him, Labor Arbiter Pablo C. Espiritu Jr. declared CATHAY liable for illegal dismissal and ordered the airline to pay Singson HK$531,150.80 representing full back wages and privileges, HK$54,137.70 for undisputed benefits due her, HK$100,000.00 as actual damages, HK$500.00 as moral damages, HK$500.00 as exemplary damages, and HK$168,528.85 as attorney’s fees. Furthermore, CATHAY was ordered to reinstate Singson to her former position as airline stewardess without loss of seniority rights, benefits and privileges.
On 20 September 1999 the Court of Appeals reversed the ruling of the NLRC and reinstated the decision of the Labor Arbiter declaring Singson to have been illegally terminated. The appellate court anchored its judgment on the following findings: First, Dr. Fowler’s opinion about Singson’s medical condition was based on the personal examination of Dr. Fahy, and not his own. The appellate court held that a personal and prolonged examination of a patient was necessary and crucial before he or she could be properly diagnosed as afflicted with asthma,[7] and thus Dr. Fowler’s expert opinion was unreliable and mere hearsay. Second, CATHAY disregarded Sec. 8, Rule I, Book VI, of the Omnibus Rules Implementing the Labor Code[8] which requires a certification by a competent public health authority when disease is the reason for an employee’s separation from service, since it relied merely on the diagnosis of its company doctors, Dr. Fowler and Dr. Fahy. Third, the NLRC erroneously relied on the affidavit executed by Dr. Fahy since she was not personally presented as a witness to identify and testify on its contents. Fourth, respondent passed the medical examination required of prospective flight cabin attendants, the International Labor Organization’s Occupational Health and Safety in Civil Aviation examination, prior to her employment and found to be fit for flight-related service. Fifth, CATHAY failed to adequately prove the health standards required in aviation, particularly the non-qualification of flight attendants afflicted with asthma to flight-related service.[9]
Consequently, the appellate court awarded respondent full back wages with reinstatement, as well as moral exemplary damages, while deleting the award of actual damages reasoning that no undue damage inured to her since her husband nonetheless remained in Hongkong managing two (2) corporations. The appellate court however declared the option given to respondent to continue her employment as a ground stewardess with CATHAY to have been erroneously issued and consequently nullified the same.
CATHAY now argues that the Court of Appeals should have confined its inquiry to issues of want or excess of jurisdiction and grave abuse of discretion and not into the factual findings of the NLRC since the petition before it was made under Rule 65.
In the instant case, no certification by competent public health authority was presented by CATHAY. It dismissed Singson based only on the recommendation of its company doctors who concluded that she was afflicted with asthma. It did not likewise show proof that Singson’s asthma could not be cured in six (6) months even with proper medical treatment. On the contrary, when Singson returned to the company clinic on 3 September 1991 or five (5) days after her initial examination on 29 August 1991, Dr. Fahy diagnosed her condition to have vastly improved.
CATHAY could not take refuge in Clause 22 of the Conditions of Service it entered into with Singson. Although a certification by a competent public health authority is not required, still CATHAY is obliged to follow several steps under the Conditions of Service before terminating its employee. The pertinent part of Clause 22 thereof provides –
Clause 22. Sick Leave. – xxxx In case of serious illness the Company will grant sick leave with full pay for the first three months and with 2/3 of pay for the fourth month. Consideration will be given to granting the cabin crew further sick leave, either with pay or off pay up to a further two months, or retiring the cabin crew on medical ground xxxx
Thus, even on the assumption that asthma is a serious illness, this again would not excuse CATHAY from ignoring procedure specified in its employment contract with Singson. Under the contract, Cathay must first allow Singson to take a leave of absence and not to terminate her services right there and then. It is only after the employee has enjoyed four (4) months of sick leave that the option to retire the employee based on medical ground arises. In the instant case, Singson went to the company clinic on 29 August 1991. On 3 September 1991 she returned to the company clinic only to be told that “effective immediately” she was dismissed on medical grounds.
We agree with the Court of Appeals in its award of moral and exemplary damages to respondent. CATHAY summarily dismissed Singson from the service based only on the recommendation of its medical officers, in effect, failing to observe the provision of the Labor Code which requires a certification by a competent public health authority. Notably, the decision to dismiss Singson was reached after a single examination only. CATHAY’s medical officers recommended Singson’s dismissal even after having diagnosed her condition to have vastly improved. It did not make even a token offer for Singson to take a leave of absence as what it provided in its Contract of Service. CATHAY is presumed to know the law and the stipulation in its Contract of Service with Singson.
WHEREFORE, the Decision of the Court of Appeals dated 20 September 1999 declaring the dismissal of respondent Martha Z. Singson by petitioner CATHAY PACIFIC AIRWAYS, LTD. as illegal and ordering her reinstatement to her former or an equivalent position without loss of seniority rights, with full back wages and benefits, and to pay her HK$500.00 as moral damages, HK$500.00 as exemplary damages plus ten percent (10%) of the total monetary award as attorney’s fees, is AFFIRMED. The amounts received by respondent representing her six (6) months retirement gratuity and one (1) month pay in lieu of notice should be DEDUCTED from respondent’s computed back wages, with costs against petitioner.
SO ORDERED.
Mendoza, (Acting Chairman), Quisumbing, and De Leon, Jr., JJ., concur.
Buena, J., abroad on official business.
Martha Z. Singson was surprised with the suddenness of the notification but nonetheless acknowledged it. Later, she met with Nipperess and inquired of possible employment that entailed only ground duties within the company. She was advised to meet with certain personnel who knew of the employment requirements in other departments in the company, and to await a possible offer from the company.
On 20 December 1991 Singson filed before the Labor Arbiter a complaint against CATHAY for illegal dismissal, with prayer for actual, moral and exemplary damages and attorney’s fees. Efforts on initial settlement having failed, trial followed.
Robert J. Nipperress and Dr. John G. Fowler appeared as witnesses for CATHAY. Nipperess confirmed that the decision to retire respondent was made upon the recommendation of Dr. Fowler. In turn, Dr. Fowler testified that the affliction of respondent with asthma rendered her unfit to fly as it posed aviation risks, i.e., asthma disabled her from properly performing her cabin crew functions, specifically her air safety functions.
On the other hand, Singson presented herself and Dr. Benjamin Lazo, a doctor in the country specializing in internal medicine and pulmonary diseases. She denied being afflicted with asthma at any point in her life, while Dr. Lazo confirmed the same declaring that at the time of his examination of Singson he found her to be of normal condition.
On the basis of the evidence presented before him, Labor Arbiter Pablo C. Espiritu Jr. declared CATHAY liable for illegal dismissal and ordered the airline to pay Singson HK$531,150.80 representing full back wages and privileges, HK$54,137.70 for undisputed benefits due her, HK$100,000.00 as actual damages, HK$500.00 as moral damages, HK$500.00 as exemplary damages, and HK$168,528.85 as attorney’s fees. Furthermore, CATHAY was ordered to reinstate Singson to her former position as airline stewardess without loss of seniority rights, benefits and privileges.
On 20 September 1999 the Court of Appeals reversed the ruling of the NLRC and reinstated the decision of the Labor Arbiter declaring Singson to have been illegally terminated. The appellate court anchored its judgment on the following findings: First, Dr. Fowler’s opinion about Singson’s medical condition was based on the personal examination of Dr. Fahy, and not his own. The appellate court held that a personal and prolonged examination of a patient was necessary and crucial before he or she could be properly diagnosed as afflicted with asthma,[7] and thus Dr. Fowler’s expert opinion was unreliable and mere hearsay. Second, CATHAY disregarded Sec. 8, Rule I, Book VI, of the Omnibus Rules Implementing the Labor Code[8] which requires a certification by a competent public health authority when disease is the reason for an employee’s separation from service, since it relied merely on the diagnosis of its company doctors, Dr. Fowler and Dr. Fahy. Third, the NLRC erroneously relied on the affidavit executed by Dr. Fahy since she was not personally presented as a witness to identify and testify on its contents. Fourth, respondent passed the medical examination required of prospective flight cabin attendants, the International Labor Organization’s Occupational Health and Safety in Civil Aviation examination, prior to her employment and found to be fit for flight-related service. Fifth, CATHAY failed to adequately prove the health standards required in aviation, particularly the non-qualification of flight attendants afflicted with asthma to flight-related service.[9]
Consequently, the appellate court awarded respondent full back wages with reinstatement, as well as moral exemplary damages, while deleting the award of actual damages reasoning that no undue damage inured to her since her husband nonetheless remained in Hongkong managing two (2) corporations. The appellate court however declared the option given to respondent to continue her employment as a ground stewardess with CATHAY to have been erroneously issued and consequently nullified the same.
CATHAY now argues that the Court of Appeals should have confined its inquiry to issues of want or excess of jurisdiction and grave abuse of discretion and not into the factual findings of the NLRC since the petition before it was made under Rule 65.
In the instant case, no certification by competent public health authority was presented by CATHAY. It dismissed Singson based only on the recommendation of its company doctors who concluded that she was afflicted with asthma. It did not likewise show proof that Singson’s asthma could not be cured in six (6) months even with proper medical treatment. On the contrary, when Singson returned to the company clinic on 3 September 1991 or five (5) days after her initial examination on 29 August 1991, Dr. Fahy diagnosed her condition to have vastly improved.
CATHAY could not take refuge in Clause 22 of the Conditions of Service it entered into with Singson. Although a certification by a competent public health authority is not required, still CATHAY is obliged to follow several steps under the Conditions of Service before terminating its employee. The pertinent part of Clause 22 thereof provides –
Clause 22. Sick Leave. – xxxx In case of serious illness the Company will grant sick leave with full pay for the first three months and with 2/3 of pay for the fourth month. Consideration will be given to granting the cabin crew further sick leave, either with pay or off pay up to a further two months, or retiring the cabin crew on medical ground xxxx
Thus, even on the assumption that asthma is a serious illness, this again would not excuse CATHAY from ignoring procedure specified in its employment contract with Singson. Under the contract, Cathay must first allow Singson to take a leave of absence and not to terminate her services right there and then. It is only after the employee has enjoyed four (4) months of sick leave that the option to retire the employee based on medical ground arises. In the instant case, Singson went to the company clinic on 29 August 1991. On 3 September 1991 she returned to the company clinic only to be told that “effective immediately” she was dismissed on medical grounds.
We agree with the Court of Appeals in its award of moral and exemplary damages to respondent. CATHAY summarily dismissed Singson from the service based only on the recommendation of its medical officers, in effect, failing to observe the provision of the Labor Code which requires a certification by a competent public health authority. Notably, the decision to dismiss Singson was reached after a single examination only. CATHAY’s medical officers recommended Singson’s dismissal even after having diagnosed her condition to have vastly improved. It did not make even a token offer for Singson to take a leave of absence as what it provided in its Contract of Service. CATHAY is presumed to know the law and the stipulation in its Contract of Service with Singson.
WHEREFORE, the Decision of the Court of Appeals dated 20 September 1999 declaring the dismissal of respondent Martha Z. Singson by petitioner CATHAY PACIFIC AIRWAYS, LTD. as illegal and ordering her reinstatement to her former or an equivalent position without loss of seniority rights, with full back wages and benefits, and to pay her HK$500.00 as moral damages, HK$500.00 as exemplary damages plus ten percent (10%) of the total monetary award as attorney’s fees, is AFFIRMED. The amounts received by respondent representing her six (6) months retirement gratuity and one (1) month pay in lieu of notice should be DEDUCTED from respondent’s computed back wages, with costs against petitioner.
SO ORDERED.
Mendoza, (Acting Chairman), Quisumbing, and De Leon, Jr., JJ., concur.
Buena, J., abroad on official business.
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Cathay's continued tactics
Cathay's continued tactics
Eddington fought a dirty battle. His managers sought to split the flight attendants on ethnic lines by trying to set Filipino strike-breakers against Korean and Malaysian pickets. These tactics failed as the multi-ethnic, largely female workforce fought the dispute with verve. They marched through the streets of Hong Kong, and 1,000 flight crew members occupied then governor Chris Patten’s garden, calling on him to intervene.
When the strike ended, Hong Kong’s legislative council set up a 14-strong monitoring group to ensure Cathay did not victimise strikers. Spitefully, Cathay immediately evicted all unions from their offices on company premises. The unions launched a five-year legal battle to get the offices back. Eventually, the two sides managed to reach an amicable agreement over the premises, but only once Eddington had finally left Cathay.
Speaking in 1993, Eddington said he had learnt two lessons from the Cathay dispute. First, he said there was a need for tougher labour laws – including legislation allowing firms to sack strikers and force unions into ‘cooling-off periods’. Second, he said it was important to try and win such battles in the media. Reflecting on press coverage of the strike, he said: ‘Clearly, when it was 4,000 pretty girls against a bunch of old men in grey suits, we didn’t stand a chance. But that didn’t mean we didn’t have to try.’
Winning over the press became a lot easier in 1999, when Eddington joined the board of Rupert Murdoch’s NewsCorp. He earned $65,000 last year for attending six board meetings. Without revealing Eddington’s involvement with its parent company, The Sun launched a one-sided attack against the GMB during the Heathrow dispute. According to the NewsCorp newspaper, strikers were recreating ‘1970s anarchy’, spoiling honeymoons and motivated by ‘sheer spite and bloody-mindedness’.
Eddington got onto the NewsCorp board because Murdoch once part-owned an Australian air firm called Ansett. Impressed by his role in the Cathay Pacific strike, Murdoch made Eddington Ansett chairman in 1997. Eddington slashed away at the company’s workforce. Australians joked: ‘How do you develop a small airline? Give a big one to Rod Eddington.’
Eddington fought a dirty battle. His managers sought to split the flight attendants on ethnic lines by trying to set Filipino strike-breakers against Korean and Malaysian pickets. These tactics failed as the multi-ethnic, largely female workforce fought the dispute with verve. They marched through the streets of Hong Kong, and 1,000 flight crew members occupied then governor Chris Patten’s garden, calling on him to intervene.
When the strike ended, Hong Kong’s legislative council set up a 14-strong monitoring group to ensure Cathay did not victimise strikers. Spitefully, Cathay immediately evicted all unions from their offices on company premises. The unions launched a five-year legal battle to get the offices back. Eventually, the two sides managed to reach an amicable agreement over the premises, but only once Eddington had finally left Cathay.
Speaking in 1993, Eddington said he had learnt two lessons from the Cathay dispute. First, he said there was a need for tougher labour laws – including legislation allowing firms to sack strikers and force unions into ‘cooling-off periods’. Second, he said it was important to try and win such battles in the media. Reflecting on press coverage of the strike, he said: ‘Clearly, when it was 4,000 pretty girls against a bunch of old men in grey suits, we didn’t stand a chance. But that didn’t mean we didn’t have to try.’
Winning over the press became a lot easier in 1999, when Eddington joined the board of Rupert Murdoch’s NewsCorp. He earned $65,000 last year for attending six board meetings. Without revealing Eddington’s involvement with its parent company, The Sun launched a one-sided attack against the GMB during the Heathrow dispute. According to the NewsCorp newspaper, strikers were recreating ‘1970s anarchy’, spoiling honeymoons and motivated by ‘sheer spite and bloody-mindedness’.
Eddington got onto the NewsCorp board because Murdoch once part-owned an Australian air firm called Ansett. Impressed by his role in the Cathay Pacific strike, Murdoch made Eddington Ansett chairman in 1997. Eddington slashed away at the company’s workforce. Australians joked: ‘How do you develop a small airline? Give a big one to Rod Eddington.’
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Point being? CX was a naughty employer and quite rightly got kicked in the pants, or CX should maybe consider only hiring in Asia where the litigation scam has not yet taken off.
litigation scam
I do hope you are secure in your own employment Shorty...
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Yup Wiz litigation scam, lets line the bloodsucking lawyers pockets a bit more. Oops I dropped my coffee, better sue the electric company for not warning me that hot beverages smart when dropped on your private parts. Oops I'm overweight, better sue the fast food companies for force feeding me their muck etc etc. Isn't it sad that you can't have a street party anymore in some countries because of the fear of litigation. If an employee is felt by the employer to be unfit for duty after a medical examination how dare that company think it can dismiss the employee. Shocking, lets sue the company quick.
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Shortly:
If you can’t fly an airplane then you should be terminated. If you are unfairly dismissed because someone in the company says so and you get an outside expert opinion stating the opposite, then you have legal recourse. As the case above.
If you are unfairly dismissed, then you have legal recourse.
If you drop hot coffee on your nuts, your just stupid. Same thing if you eat McDonalds and wonder why you are fat.
The real reason this will never see the inside of a courtroom. Cathay is getting pressure from other businesses in Hong Kong not to let this go to trial. If those nasty pilots win, it will set a precedent in Hong Kong law and then the rest of us cannot do this:
PCCW sacks hundreds
From South China Morning Post, 7 December 2001
Troubled hitech company, Pacific Century CyberWorks, sacked 506 workers on 5 December, while announcing a pay freeze for the remaining 14,000 staff, and stopping recruitment of new staff.
The redundancies are the second this year - 290 workers were sacked in July.
PCCW refused to rule out future sackings.
The company union said that workers made redundant were selected unilaterally by management, and no rationale accompanied the choice of sacked workers, other than to claim that PCCW will maintain quality of service – a point some union members dispute.
The union is collecting information before officially approaching management, but not to reinstate the workers, merely to improve the redundancy package for the 506.
Cathay will sack more pilots in the future when that want something. Why, if this offer goes through, because it works!
Yours, mine and the 44ers future are at stake here. You probably don't care because you don't have much time to go before your 60 and off the freighter. Unless your NR of course.
If you can’t fly an airplane then you should be terminated. If you are unfairly dismissed because someone in the company says so and you get an outside expert opinion stating the opposite, then you have legal recourse. As the case above.
If you are unfairly dismissed, then you have legal recourse.
If you drop hot coffee on your nuts, your just stupid. Same thing if you eat McDonalds and wonder why you are fat.
The real reason this will never see the inside of a courtroom. Cathay is getting pressure from other businesses in Hong Kong not to let this go to trial. If those nasty pilots win, it will set a precedent in Hong Kong law and then the rest of us cannot do this:
PCCW sacks hundreds
From South China Morning Post, 7 December 2001
Troubled hitech company, Pacific Century CyberWorks, sacked 506 workers on 5 December, while announcing a pay freeze for the remaining 14,000 staff, and stopping recruitment of new staff.
The redundancies are the second this year - 290 workers were sacked in July.
PCCW refused to rule out future sackings.
The company union said that workers made redundant were selected unilaterally by management, and no rationale accompanied the choice of sacked workers, other than to claim that PCCW will maintain quality of service – a point some union members dispute.
The union is collecting information before officially approaching management, but not to reinstate the workers, merely to improve the redundancy package for the 506.
Cathay will sack more pilots in the future when that want something. Why, if this offer goes through, because it works!
Yours, mine and the 44ers future are at stake here. You probably don't care because you don't have much time to go before your 60 and off the freighter. Unless your NR of course.
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Analysis of the offer
Analysis of the offer
This part of the paper will deal with the many questions that have been asked regarding the offer itself. It will not recommend rejection or acceptance of the offer. Each of us is going to have to make that decision as individuals. What it will do is offer some food for thought when coming to that decision.
It is acknowledged wisdom that in any negotiation, if a deal between the parties is to have any chance of being a satisfactory and lasting solution, then that deal must, as far as possible, satisfy the objectives of all parties to the negotiation. The question that has been asked is, does this offer meet that criterion?
From the company’s point of view, if we were all to accept the offer, then it would most certainly meet their objectives. The various legal actions would be settled for a relatively cheap price and the problem that they have been having in crewing the freighter aircraft would be solved, again at a relatively cheap price. From the company’s perspective, it would seem to be a good deal. On the other hand, however, if only some of us accept the offer, it would not be such a good deal as the court cases will continue on their current course and one of the company’s prime objectives would not be met.
From both the 49ers’ perspective and that of CX pilots as a whole, it can be argued that the offer is not nearly so attractive. Some of you have asked, what about our objectives? As communicated to you in the newsletter of 27th September 2004, two objectives were agreed to by the President prior to entering into negotiations.
1. To ensure that Cathay Pacific pilots can never again be put in the position in which we have found ourselves.
2. To ensure full reinstatement and proper compensation for 49ers who are qualified and wish to return to work for CX and to ensure proper compensation for those who are not now qualified or do not wish to return to work for CX.
As reported to you earlier, at our recent meeting both the President and the Gen Sec stated that neither of these objectives has been met by this offer. On that basis then, this is not a fair deal. Therefore, we should insist in the subsequent negotiations that our objectives as well as the company’s are satisfied.
A possible counter to that suggestion is that both the company and those from the AOA who have presented the offer to us have stated that this is a “final” offer. The question has been asked by many of you, is this really their best and final offer? In negotiations training we are taught that “best and final offers” are rarely that, especially when they are the first offer to be put on the table. Rather, it is standard negotiating technique used to pressure the other party. Often such a tactic is accompanied by a “deadline” as we have in our current situation. Again, negotiation training teaches us that the best thing to do with deadlines is to ignore them. On balance then, this might be a “final” offer but experience tells us that it is more likely to be a negotiating position.
No doubt those who have come up with this deal believe that it is the best deal that they were able to reach at the present time and that is why they have recommended it to us in its present form despite the fact that it does not satisfy our agreed objectives.
If we were to reject this offer, what guarantees do we have that the company will come back to the table with an improved offer at a later date? The simple answer is that we do not. There are few guarantees in life other than death and taxes. In this situation we are, however, able to make a judgement call based on our knowledge and experience.
We have been in situations similar to this before. In 1999, during the contract negotiations, it was stated by the company very bluntly that there would never be a scope clause in the pilots’ contract and they stonewalled that position. When they finally became convinced of our resolution on the matter, one morning the scope provisions were reapidly agreed to.
When our current President was made Cat D because of his union activities, it was stated categorically by the then DFO that the decision was “set in stone”. Two months later, the decision was effectively reversed.
When a Past President was fired purportedly for questioning the serviceability of an aircraft he had been assigned to fly, that decision was stated to be final and the last word on the matter. Four weeks later he was reinstated in full with no loss of pay or seniority and his record was expunged.
There is no doubt that the company has already shifted its position from as recently as 6 months ago. Then, it was being stated that “the 49ers are history”, that “we have moved on” or words to that effect and refused even to enter into discussions. They have now entered into a first round of negotiations. That is significant movement. It is an acknowledgement by the company that the 49er problem needs to be solved through negotiation. The only question now to be resolved is under what terms?
What pressure or influence can we exert on the company to return to the table with an improved offer? If we examine the company’s strategy with regard to the various legal cases we have been pursuing, it can best be summed up in two words, delay and prevarication. They have consistently sought to avoid having to defend their actions on the substantive issues. Our intelligence strongly tells us consistently that they do not want to find themselves in a position where their actions will be subject to public scrutiny. Even the DFO refers to “adverse PR” in his recent newsletter. With the latest ruling in our favour in the courts in Australia, this is a probability rather than a possibility. The company know that the timescale is now shortening and this might explain the timing of the current offer.
Despite the fact that the actual financial legal remedies available in some of the jurisdictions fall short of the financial offer that is currently on the table, it can be argued that that is neither the whole story nor the sole criterion on which to judge the “leverage” the cases provide for us.
No company wants to see its senior executive officers called to the witness stand to account for their actions in open court. No company wants to be found to be in breach of legislation designed to protect its employees. No company wants to be branded as a bad employer. No company wants to have its dirty washing aired in public for all to see. These sorts of factors are not taken into account by lawyers when giving legal advice. They are nonetheless significant factors to be taken into account when making our judgement call on whether to accept the offer currently on the table or to continue to sue for an improved offer.
The available legal remedies are only part of the story, not the whole story. Whilst the law may not provide specific remedies for the factors mentioned above, an employer that has acted improperly with often go over and above the legal remedies in order to protect its reputation and good standing.
What of the terms of the current offer itself?
For those of us who cannot or do not wish to return to employment with the company, the matter is a relatively easy one for us to decide. Is the money on offer adequate to compensate us for the damage done to our careers? Is it an amount that we can live with to make the whole sorry mess go away and get on with our lives? Is it an amount that our individual financial circumstances will permit us to accept? If the answer to those questions is yes and we are not concerned anymore with the principles at stake, then clearly we should accept the offer. If, on the other hand, the answer to those questions is no, then in making our decision we first have to decide whether or not we believe that a better offer is likely to be on the table at a later date and then how we would get to an improved offer.
For those who are considering the offer of employment, there are a number of factors to consider, both upside and downside. It is an offer to apply for employment. It is an opportunity potentially to get back on the flight deck. It is an offer potentially to re-enter a career. It is not an offer of re-instatement. It is not an offer of re-employment in your old job. It is not even an offer of employment as there is no guarantee that you will be successful in the selection process. Put simply, it is just an offer of a job interview that might be available to any other pilot worldwide. Also, the employment contract would still include clause 35.3.
Again, we have seen this situation before. When the Classic freighters were sent to ASL, all of the “contract” Flight Engineers, some of whom had been with the company for over 7 years, had their contracts terminated. They were then invited to apply for positions in ASL; effectively to apply for their own jobs back albeit under a different name. The interview process was then used, in the words of one manager at the time, “to weed out those who were considered undesirable.” Some of these men who had years of loyal service with the company were told that they had failed the interview and were not offered employment.
In deciding to drop your legal action in full and final settlement and in return for an opportunity to apply for a new job, you may wish to consider whether or not history might repeat itself. If you are considering accepting the offer purely because it means getting back to flying, you should consider the possibility that you may end up with 10 months pay, no flying job or legal justice and be prepared to accept that result.
One other factor that you might want to consider is how it would look to a potential future employer if you were to fail the psychological evaluation process that you would be required to undertake. In certain jurisdictions, you would be required by law to disclose that information as part of your job application. If you did not disclose that fact and it came to light at a later date, you could be subject to summary dismissal.
We have also received independent advice that, should you be considering accepting the offer to apply for employment, it would be prudent to first ensure that you have a valid Hong Kong Class 1 medical certificate prior to undertaking the selection process.
This paper will not analyse the terms of the actual employment contract itself. You can all read them for yourselves and draw your own conclusions. There are issues regarding compensation, salary, seniority, probation, career progression, staff travel and so on that each individual must consider as to whether or not he finds them acceptable according to his own circumstances.
Amongst the most important factors to be considered is that this offer does not address the original purported dismissals. It is fundamentally important, especially if the employment procedure is even to be considered, that the events of 9th July 2001 first be declared null and void by the company and the so-called “dismissals” entirely retracted. It can be very strongly argued that anything less places the future careers of all 49ers in permanent jeopardy.
In summary, it is not the purpose of this paper to recommend rejection or otherwise of the offer currently on the table. Rather it is intended to provide some advice and observations for your consideration when making your decision.
No doubt some of the issues raised herein will generate debate amongst our group. That is a good and healthy thing. In engaging each other in debate, however, let us all remember that everyone is entitled to his own opinion and despite the fact that emotions may be running high, let us keep the debate on a civil level.
Borrowed from a 44er on Cprune.
This part of the paper will deal with the many questions that have been asked regarding the offer itself. It will not recommend rejection or acceptance of the offer. Each of us is going to have to make that decision as individuals. What it will do is offer some food for thought when coming to that decision.
It is acknowledged wisdom that in any negotiation, if a deal between the parties is to have any chance of being a satisfactory and lasting solution, then that deal must, as far as possible, satisfy the objectives of all parties to the negotiation. The question that has been asked is, does this offer meet that criterion?
From the company’s point of view, if we were all to accept the offer, then it would most certainly meet their objectives. The various legal actions would be settled for a relatively cheap price and the problem that they have been having in crewing the freighter aircraft would be solved, again at a relatively cheap price. From the company’s perspective, it would seem to be a good deal. On the other hand, however, if only some of us accept the offer, it would not be such a good deal as the court cases will continue on their current course and one of the company’s prime objectives would not be met.
From both the 49ers’ perspective and that of CX pilots as a whole, it can be argued that the offer is not nearly so attractive. Some of you have asked, what about our objectives? As communicated to you in the newsletter of 27th September 2004, two objectives were agreed to by the President prior to entering into negotiations.
1. To ensure that Cathay Pacific pilots can never again be put in the position in which we have found ourselves.
2. To ensure full reinstatement and proper compensation for 49ers who are qualified and wish to return to work for CX and to ensure proper compensation for those who are not now qualified or do not wish to return to work for CX.
As reported to you earlier, at our recent meeting both the President and the Gen Sec stated that neither of these objectives has been met by this offer. On that basis then, this is not a fair deal. Therefore, we should insist in the subsequent negotiations that our objectives as well as the company’s are satisfied.
A possible counter to that suggestion is that both the company and those from the AOA who have presented the offer to us have stated that this is a “final” offer. The question has been asked by many of you, is this really their best and final offer? In negotiations training we are taught that “best and final offers” are rarely that, especially when they are the first offer to be put on the table. Rather, it is standard negotiating technique used to pressure the other party. Often such a tactic is accompanied by a “deadline” as we have in our current situation. Again, negotiation training teaches us that the best thing to do with deadlines is to ignore them. On balance then, this might be a “final” offer but experience tells us that it is more likely to be a negotiating position.
No doubt those who have come up with this deal believe that it is the best deal that they were able to reach at the present time and that is why they have recommended it to us in its present form despite the fact that it does not satisfy our agreed objectives.
If we were to reject this offer, what guarantees do we have that the company will come back to the table with an improved offer at a later date? The simple answer is that we do not. There are few guarantees in life other than death and taxes. In this situation we are, however, able to make a judgement call based on our knowledge and experience.
We have been in situations similar to this before. In 1999, during the contract negotiations, it was stated by the company very bluntly that there would never be a scope clause in the pilots’ contract and they stonewalled that position. When they finally became convinced of our resolution on the matter, one morning the scope provisions were reapidly agreed to.
When our current President was made Cat D because of his union activities, it was stated categorically by the then DFO that the decision was “set in stone”. Two months later, the decision was effectively reversed.
When a Past President was fired purportedly for questioning the serviceability of an aircraft he had been assigned to fly, that decision was stated to be final and the last word on the matter. Four weeks later he was reinstated in full with no loss of pay or seniority and his record was expunged.
There is no doubt that the company has already shifted its position from as recently as 6 months ago. Then, it was being stated that “the 49ers are history”, that “we have moved on” or words to that effect and refused even to enter into discussions. They have now entered into a first round of negotiations. That is significant movement. It is an acknowledgement by the company that the 49er problem needs to be solved through negotiation. The only question now to be resolved is under what terms?
What pressure or influence can we exert on the company to return to the table with an improved offer? If we examine the company’s strategy with regard to the various legal cases we have been pursuing, it can best be summed up in two words, delay and prevarication. They have consistently sought to avoid having to defend their actions on the substantive issues. Our intelligence strongly tells us consistently that they do not want to find themselves in a position where their actions will be subject to public scrutiny. Even the DFO refers to “adverse PR” in his recent newsletter. With the latest ruling in our favour in the courts in Australia, this is a probability rather than a possibility. The company know that the timescale is now shortening and this might explain the timing of the current offer.
Despite the fact that the actual financial legal remedies available in some of the jurisdictions fall short of the financial offer that is currently on the table, it can be argued that that is neither the whole story nor the sole criterion on which to judge the “leverage” the cases provide for us.
No company wants to see its senior executive officers called to the witness stand to account for their actions in open court. No company wants to be found to be in breach of legislation designed to protect its employees. No company wants to be branded as a bad employer. No company wants to have its dirty washing aired in public for all to see. These sorts of factors are not taken into account by lawyers when giving legal advice. They are nonetheless significant factors to be taken into account when making our judgement call on whether to accept the offer currently on the table or to continue to sue for an improved offer.
The available legal remedies are only part of the story, not the whole story. Whilst the law may not provide specific remedies for the factors mentioned above, an employer that has acted improperly with often go over and above the legal remedies in order to protect its reputation and good standing.
What of the terms of the current offer itself?
For those of us who cannot or do not wish to return to employment with the company, the matter is a relatively easy one for us to decide. Is the money on offer adequate to compensate us for the damage done to our careers? Is it an amount that we can live with to make the whole sorry mess go away and get on with our lives? Is it an amount that our individual financial circumstances will permit us to accept? If the answer to those questions is yes and we are not concerned anymore with the principles at stake, then clearly we should accept the offer. If, on the other hand, the answer to those questions is no, then in making our decision we first have to decide whether or not we believe that a better offer is likely to be on the table at a later date and then how we would get to an improved offer.
For those who are considering the offer of employment, there are a number of factors to consider, both upside and downside. It is an offer to apply for employment. It is an opportunity potentially to get back on the flight deck. It is an offer potentially to re-enter a career. It is not an offer of re-instatement. It is not an offer of re-employment in your old job. It is not even an offer of employment as there is no guarantee that you will be successful in the selection process. Put simply, it is just an offer of a job interview that might be available to any other pilot worldwide. Also, the employment contract would still include clause 35.3.
Again, we have seen this situation before. When the Classic freighters were sent to ASL, all of the “contract” Flight Engineers, some of whom had been with the company for over 7 years, had their contracts terminated. They were then invited to apply for positions in ASL; effectively to apply for their own jobs back albeit under a different name. The interview process was then used, in the words of one manager at the time, “to weed out those who were considered undesirable.” Some of these men who had years of loyal service with the company were told that they had failed the interview and were not offered employment.
In deciding to drop your legal action in full and final settlement and in return for an opportunity to apply for a new job, you may wish to consider whether or not history might repeat itself. If you are considering accepting the offer purely because it means getting back to flying, you should consider the possibility that you may end up with 10 months pay, no flying job or legal justice and be prepared to accept that result.
One other factor that you might want to consider is how it would look to a potential future employer if you were to fail the psychological evaluation process that you would be required to undertake. In certain jurisdictions, you would be required by law to disclose that information as part of your job application. If you did not disclose that fact and it came to light at a later date, you could be subject to summary dismissal.
We have also received independent advice that, should you be considering accepting the offer to apply for employment, it would be prudent to first ensure that you have a valid Hong Kong Class 1 medical certificate prior to undertaking the selection process.
This paper will not analyse the terms of the actual employment contract itself. You can all read them for yourselves and draw your own conclusions. There are issues regarding compensation, salary, seniority, probation, career progression, staff travel and so on that each individual must consider as to whether or not he finds them acceptable according to his own circumstances.
Amongst the most important factors to be considered is that this offer does not address the original purported dismissals. It is fundamentally important, especially if the employment procedure is even to be considered, that the events of 9th July 2001 first be declared null and void by the company and the so-called “dismissals” entirely retracted. It can be very strongly argued that anything less places the future careers of all 49ers in permanent jeopardy.
In summary, it is not the purpose of this paper to recommend rejection or otherwise of the offer currently on the table. Rather it is intended to provide some advice and observations for your consideration when making your decision.
No doubt some of the issues raised herein will generate debate amongst our group. That is a good and healthy thing. In engaging each other in debate, however, let us all remember that everyone is entitled to his own opinion and despite the fact that emotions may be running high, let us keep the debate on a civil level.
Borrowed from a 44er on Cprune.
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The 49ers and Related Issues (Merged).
I'm merging three thread in to this one and will make it a 'sticky.
Grateful if you will post relevant material here - Thanks.
BE.
Grateful if you will post relevant material here - Thanks.
BE.
Last edited by BlueEagle; 19th Jan 2005 at 04:51.
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On the PHP case - that is a country where Cathay was once sued for upgrading a passenger. And the passenger won...
Not quite sure why a PHP labour court would has jurisdiction over a HK case. But looks like they decided they do.
Have any filipina cabin crew been hired since this case finished (1999)?
Not quite sure why a PHP labour court would has jurisdiction over a HK case. But looks like they decided they do.
Have any filipina cabin crew been hired since this case finished (1999)?
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There is only 1 way to vote
Accept the offer, trust MG & JF and.............the company will never do this again.
Accept the offer and...........................all will be safe and secure in the knowledge that you will never be able to count on any more than a 3 month future career.
Accept the offer and.......................... about 10 will be re-employed for visual optics, no more.
Accept the offer and...........................hide in DB and hope this issue never comes to your door.
Wake up and smell the coffee there is only 1 way to vote.
Accept the offer and...........................all will be safe and secure in the knowledge that you will never be able to count on any more than a 3 month future career.
Accept the offer and.......................... about 10 will be re-employed for visual optics, no more.
Accept the offer and...........................hide in DB and hope this issue never comes to your door.
Wake up and smell the coffee there is only 1 way to vote.
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From a 44er
Dear Friends,
I am trying to work out how best to express my opinion about “the offer”. It is very important for all of you to know what I (and my family) want you to do. We want you to consider the following and see what conclusions you draw and on that basis cast your vote.
Basically I have a simple question: Is this “fair treatment for the 49ers”? There is one simple answer to this question and that is NO. It is interesting that I have yet to speak to anyone who thinks this deal is fair. Nobody thinks this is fair including the committee.
This leads to a quandary. Why is the committee “selling” such an unfair deal? I believe that they are convinced that this is in fact the best offer available at this time. So we need to ask ourselves do we think that time will improve this offer. Personally I believe that in this instance time is our friend and I think a better option would be to seek vast improvements in the offer prior to being forced into deciding.
Personally I wish to be re-employed by Cathay. I believe them to be a great airline and I would be honoured to be a Cathay pilot again. What I do not need is to be constantly reminded of the results of this protracted dispute by being forced to accept such a “punitive” offer of an interview and perhaps employment. This offer only continues the punishment that my family and I have endured for the last 3½ years. At the very least I deserve to be returned to my previous salary and position on the seniority list. What equipment I operate is irrelevant. In order for us all to put this dispute behind us compensation and re-employment must be fair.
Several pieces of correspondence have alluded to a perceived weak legal position. I ask the question… If this legal position is so weak why then does the Management require me to relinquish this (weak) position prior to having even a medical? I believe that Cathay will not go to court and that there will be a better offer that includes jobs. Likewise I believe that the Union can afford to continue supporting the 49ers. In fact it can ill afford not to.
The Senior Management of Cathay has decided to attempt to resolve this dispute. This offer does not resolve the dispute. This offer does not allow us to confine the past 3 1/2 years to history. This same management team has equally acknowledged that money is not an issue…so let’s tell them to stop making it an issue and come up with a non punitive offer.
My family will be forever grateful for the support you have given us. Please be assured that your decision will be one which we accept.
Thank you.
I am trying to work out how best to express my opinion about “the offer”. It is very important for all of you to know what I (and my family) want you to do. We want you to consider the following and see what conclusions you draw and on that basis cast your vote.
Basically I have a simple question: Is this “fair treatment for the 49ers”? There is one simple answer to this question and that is NO. It is interesting that I have yet to speak to anyone who thinks this deal is fair. Nobody thinks this is fair including the committee.
This leads to a quandary. Why is the committee “selling” such an unfair deal? I believe that they are convinced that this is in fact the best offer available at this time. So we need to ask ourselves do we think that time will improve this offer. Personally I believe that in this instance time is our friend and I think a better option would be to seek vast improvements in the offer prior to being forced into deciding.
Personally I wish to be re-employed by Cathay. I believe them to be a great airline and I would be honoured to be a Cathay pilot again. What I do not need is to be constantly reminded of the results of this protracted dispute by being forced to accept such a “punitive” offer of an interview and perhaps employment. This offer only continues the punishment that my family and I have endured for the last 3½ years. At the very least I deserve to be returned to my previous salary and position on the seniority list. What equipment I operate is irrelevant. In order for us all to put this dispute behind us compensation and re-employment must be fair.
Several pieces of correspondence have alluded to a perceived weak legal position. I ask the question… If this legal position is so weak why then does the Management require me to relinquish this (weak) position prior to having even a medical? I believe that Cathay will not go to court and that there will be a better offer that includes jobs. Likewise I believe that the Union can afford to continue supporting the 49ers. In fact it can ill afford not to.
The Senior Management of Cathay has decided to attempt to resolve this dispute. This offer does not resolve the dispute. This offer does not allow us to confine the past 3 1/2 years to history. This same management team has equally acknowledged that money is not an issue…so let’s tell them to stop making it an issue and come up with a non punitive offer.
My family will be forever grateful for the support you have given us. Please be assured that your decision will be one which we accept.
Thank you.
Last edited by BlueEagle; 25th Jan 2005 at 03:15.
Just an other digit
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Two articles from today's SCMP by Simon Parry
Cathay Pacific is offering payouts of about $1 million or the chance to reapply for jobs to pilots sacked during a 2001 industrial dispute - if they agree to drop legal action against the airline.
The offer of an out-of-court settlement to the group known as the "49ers" is the first of its kind in the bitter 3-1/2-year dispute and is being recommended to pilots by the Aircrew Officers Association, which negotiated the deal.
If it is accepted, the sacked pilots can either take a 10-month payout or an interview for a job as freighter pilots with Cathay, positions junior to those they previously held.
Any 49er who applies for a job will be subjected to psychological testing - a step proposed by the association - to make sure they do not hold a lasting grudge against the airline.
Fifty-one pilots were sacked by Cathay in July 2001, at the height of a dispute over pay and rosters which resulted in a work-to-rule campaign by association members. They are named for the 49 dismissed in one mass sacking.
Legal proceedings have been taken out against Cathay by sacked pilots in the US, Australia, Britain and Hong Kong, and the offer to pilots is conditional on the actions being dropped.
The 1,000-member Aircrew Officers Association, which has supported the 49ers financially and funded their lawsuits, is due to decide at an extraordinary general meeting on February 15 whether to approve Cathay's offer.
The offer has opened a heated debate within the association and among the 49ers over whether it should be accepted or whether the pilots should continue fighting their cases through the courts.
The five plaintiffs in the Australian case have written to association members, saying: "We beg you to continue to support our legal cases until we have a reasonable offer formally made to us or have our day in court."
One of the 49ers, Canada-based Steve Urquhart, 36, said he wanted to accept the offer and return to Hong Kong. "We could be bitter for the rest of our lives but I would rather put it behind me and go back to work," he said. "Hopefully in five years it will all be ancient history."
Association president Murray Gardner, recommending the offer to members, said: "This has been a difficult period in the history of industrial relations between the association and the management of Cathay Pacific.
"However, relations have improved markedly in the past two years and the priority of both parties now is to further improve the relationship, to help the airline grow and prosper and to safeguard the best interests of everyone."
Cathay's director of flight operations Nick Rhodes said Cathay's offer was a "full and final" one and if it was rejected the matter would be sorted out in the courts.
"There comes a time in any dispute when you have to move forward," he said. "We are very pleased the association is now run by a business-minded committee."
.........................
Cathay Pacific pilots are each paying thousands of dollars a month to support the 49ers in what is believed to be the longest and most expensive dispute for aviation union members anywhere in the world.
Dues were raised from the usual level of 1 per cent of salaries to 5 per cent at the peak of the dispute over the 2001 dismissal of pilots. As more of the 49ers found work and needed less support, that level was reduced to 4 per cent and then 3 per cent, but it still amounts to about $4,000 a month for a senior captain.
The burden of paying the legal fees has made it one of the most expensive unions in the world and, not surprisingly, membership has fallen from more than 1,300 before the 2001 dispute to less than 1,000 today.
However, union insiders say that the members now left are committed to the association and its causes. "The guys that are left are 49er supporters," one long-serving member said.
"They understand the issues and understand we need to ensure fair treatment for the 49ers. They have been paying to support the 49ers for 1,300 days now and they are prepared to continue paying if they have to."
Another senior member agreed the debate over the settlement offer had been "divisive and emotive", but said whatever the outcome of the vote, the association and its leadership would remain united. "We've been through too much together to come apart over this."
The offer of an out-of-court settlement to the group known as the "49ers" is the first of its kind in the bitter 3-1/2-year dispute and is being recommended to pilots by the Aircrew Officers Association, which negotiated the deal.
If it is accepted, the sacked pilots can either take a 10-month payout or an interview for a job as freighter pilots with Cathay, positions junior to those they previously held.
Any 49er who applies for a job will be subjected to psychological testing - a step proposed by the association - to make sure they do not hold a lasting grudge against the airline.
Fifty-one pilots were sacked by Cathay in July 2001, at the height of a dispute over pay and rosters which resulted in a work-to-rule campaign by association members. They are named for the 49 dismissed in one mass sacking.
Legal proceedings have been taken out against Cathay by sacked pilots in the US, Australia, Britain and Hong Kong, and the offer to pilots is conditional on the actions being dropped.
The 1,000-member Aircrew Officers Association, which has supported the 49ers financially and funded their lawsuits, is due to decide at an extraordinary general meeting on February 15 whether to approve Cathay's offer.
The offer has opened a heated debate within the association and among the 49ers over whether it should be accepted or whether the pilots should continue fighting their cases through the courts.
The five plaintiffs in the Australian case have written to association members, saying: "We beg you to continue to support our legal cases until we have a reasonable offer formally made to us or have our day in court."
One of the 49ers, Canada-based Steve Urquhart, 36, said he wanted to accept the offer and return to Hong Kong. "We could be bitter for the rest of our lives but I would rather put it behind me and go back to work," he said. "Hopefully in five years it will all be ancient history."
Association president Murray Gardner, recommending the offer to members, said: "This has been a difficult period in the history of industrial relations between the association and the management of Cathay Pacific.
"However, relations have improved markedly in the past two years and the priority of both parties now is to further improve the relationship, to help the airline grow and prosper and to safeguard the best interests of everyone."
Cathay's director of flight operations Nick Rhodes said Cathay's offer was a "full and final" one and if it was rejected the matter would be sorted out in the courts.
"There comes a time in any dispute when you have to move forward," he said. "We are very pleased the association is now run by a business-minded committee."
.........................
Cathay Pacific pilots are each paying thousands of dollars a month to support the 49ers in what is believed to be the longest and most expensive dispute for aviation union members anywhere in the world.
Dues were raised from the usual level of 1 per cent of salaries to 5 per cent at the peak of the dispute over the 2001 dismissal of pilots. As more of the 49ers found work and needed less support, that level was reduced to 4 per cent and then 3 per cent, but it still amounts to about $4,000 a month for a senior captain.
The burden of paying the legal fees has made it one of the most expensive unions in the world and, not surprisingly, membership has fallen from more than 1,300 before the 2001 dispute to less than 1,000 today.
However, union insiders say that the members now left are committed to the association and its causes. "The guys that are left are 49er supporters," one long-serving member said.
"They understand the issues and understand we need to ensure fair treatment for the 49ers. They have been paying to support the 49ers for 1,300 days now and they are prepared to continue paying if they have to."
Another senior member agreed the debate over the settlement offer had been "divisive and emotive", but said whatever the outcome of the vote, the association and its leadership would remain united. "We've been through too much together to come apart over this."
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The 49er conditions had a gag order. Seem the conditions made it to the front page of the SCMP. Noticed they took the salary of the highest paid pilot that was about to retire. Surprised it was not higher.
What was it that Rod Eddington said again about winning in the media?
The AOA President had a meeting with NR (DFO) the day before this came out. I wonder if they were finalizing the wording of the article. I am sure the DFO knew it was coming out. Amazing the timing of all this.
The AOA president has not flown in about a year, has an office at CX, has lunch and knows all the managers by their first name. We may as well have the DFO as AOA president. This whole thing smells.
What was it that Rod Eddington said again about winning in the media?
The AOA President had a meeting with NR (DFO) the day before this came out. I wonder if they were finalizing the wording of the article. I am sure the DFO knew it was coming out. Amazing the timing of all this.
The AOA president has not flown in about a year, has an office at CX, has lunch and knows all the managers by their first name. We may as well have the DFO as AOA president. This whole thing smells.
Last edited by Turbo Beaver; 27th Jan 2005 at 00:23.
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Would you sign this?
Seems someone really wants to get these court cases over with. Would you sign this after being unfairly dismissed only to go for an interview? This is really taking care of your members.
4. Governing law and jurisdiction
The terms of this offer are governed by Hong Kong law. By accepting any part of the offer the former officer is acknowledging that the courts of Hong Kong have exclusive jurisdiction to hear any dispute, complaint or controversy relating to this offer and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.
1. THE HKAOA’S OBLIGATION
(a) In consideration of Cathay’s undertakings set out in Clause 2 above, but subject to sub-clause (b) below, the HKAOA undertakes:-
(i) immediately to cease assisting (directly or indirectly) any of the Terminated Pilots in any existing Legal Action against Cathay, Veta Limited or USA Basing Limited or any Relevant Person,
(ii) not to assist (directly or indirectly) any of the Terminated Pilots in any future Legal Action against any Relevant Person, and
(iii) not to assist any other person (being an individual, corporation or any unincorporated organisation, society or union) in assisting, whether directly or indirectly, any Legal Action (whether an existing Legal Action or a future Legal Action) by any of the Terminated Pilots against any Relevant Person.
For the purpose of the above:-
“assist” includes, but is not limited to:-
∑ financial assistance,
∑ the provision of advice or facilities which operate to facilitate any person in bringing or continuing a Legal Action, or
∑ any act which would encourage any person to bring or continue a Legal Action.
“Legal Action” means:-
∑ Actions brought in the High Court of the Hong Kong Special Administrative Region, Court of First Instance, Nos. HCMP 4400 of 2001 and HCA 2822 of 2002, by John Simpson Warham and 22 others against Cathay Pacific Airways Limited and Veta Limited;
∑ Actions brought in the Employment Tribunal of England and Wales, Nos. 2304383/01 and others, by George Andrew Crofts and 11 others against Cathay Pacific Airways Limited, Veta Limited and USA Basing Limited;
∑ Appeal brought in the Court of Appeal of England, Ref: A1/2004/1485, (On Appeal from the Employment Appeal Tribunal No. HKEAT/0367 & 8/03/DA) by George Andrew Crofts and 11 others against Veta Limited, Cathay Pacific Airways Limited and USA Basing Limited in relation to the Employment Tribunal’s decision regarding preliminary aspects of Employment Tribunal claim Nos. 2304383/01 & others;
∑ Complaint filed in the Superior Court of the State of California, County of Los Angeles, USA, Case No. BC259052, by Hendrick Van Keulen and 8 others against Cathay Pacific Airways Limited, USA Basing Limited, Veta Limited, Tony Tyler and Philip Chen Nan-lok;
∑ Proceedings filed in Australia by Mark Andrew Evans and 4 others against Cathay Pacific Airways Limited and Veta Limited;
∑ any complaint, action, suit, cause of action, proceeding, arbitration or demand (in each case whether contractual, tortious, statutory or otherwise) relating to the employment of any of the Terminated Pilots by Cathay, Veta Limited or USA Basing Limited prior to the date of this Agreement or the termination of such employment.
“Relevant Person” means Cathay and any subsidiary or holding company of Cathay (or any subsidiary of a holding company of Cathay) and their officers and employees (both past and present).
“Terminated Pilot” includes the estate of Gregory Stephen England.
(b) Each of the undertakings of the HKAOA set out in sub-clause (a) above are conditional upon the membership of the HKAOA passing a resolution in favour of the terms of the offer set out in this Agreement and the offer letter on 15th February, 2005 (or such later date as Cathay and the HKAOA may agree).
DAMAGES NOT AN ADEQUATE REMEDY
The HKAOA acknowledges that damages will not be an adequate remedy for a breach of the undertakings in Clause 3 above and, therefore, Cathay is entitled to an injunction to prevent a breach of such provisions or a continuation of any such a breach.
PUBLIC STATEMENTS
Both Cathay and the HKAOA agree not to make any public statements concerning this Agreement without the prior written approval of the other party.
AMENDMENT, WAIVER ETC.
(a) No failure on the part of any party to exercise and no delay on its part in exercising any right or remedy under this Agreement shall operate as a waiver of such right or remedy, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise or the exercise of any other right or remedy.
(b) No provision of this Agreement may be amended, waived, discharged or terminated orally but any such amendment, waiver, discharge or termination shall only be effected by an instrument in writing signed by both Cathay and the HKAOA.
SEVERANCE
Any provision of this Agreement prohibited by or which is unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement, and where the provisions of any such applicable law may be waived, they are hereby waived by Cathay and the HKAOA to the full extent permitted by such law to the effect that this Agreement shall be valid and binding and enforceable in accordance with its terms.
GOVERNING LAW
Cathay and the HKAOA agree:
that this Agreement is governed and is to be construed in accordance with the laws of Hong Kong; and
irrevocably and unconditionally to submit to the exclusive jurisdiction of the Courts of Hong Kong to hear any dispute, complaint or controversy relating to this Agreement and waive any objection to proceedings in such courts on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.
4. Governing law and jurisdiction
The terms of this offer are governed by Hong Kong law. By accepting any part of the offer the former officer is acknowledging that the courts of Hong Kong have exclusive jurisdiction to hear any dispute, complaint or controversy relating to this offer and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.
1. THE HKAOA’S OBLIGATION
(a) In consideration of Cathay’s undertakings set out in Clause 2 above, but subject to sub-clause (b) below, the HKAOA undertakes:-
(i) immediately to cease assisting (directly or indirectly) any of the Terminated Pilots in any existing Legal Action against Cathay, Veta Limited or USA Basing Limited or any Relevant Person,
(ii) not to assist (directly or indirectly) any of the Terminated Pilots in any future Legal Action against any Relevant Person, and
(iii) not to assist any other person (being an individual, corporation or any unincorporated organisation, society or union) in assisting, whether directly or indirectly, any Legal Action (whether an existing Legal Action or a future Legal Action) by any of the Terminated Pilots against any Relevant Person.
For the purpose of the above:-
“assist” includes, but is not limited to:-
∑ financial assistance,
∑ the provision of advice or facilities which operate to facilitate any person in bringing or continuing a Legal Action, or
∑ any act which would encourage any person to bring or continue a Legal Action.
“Legal Action” means:-
∑ Actions brought in the High Court of the Hong Kong Special Administrative Region, Court of First Instance, Nos. HCMP 4400 of 2001 and HCA 2822 of 2002, by John Simpson Warham and 22 others against Cathay Pacific Airways Limited and Veta Limited;
∑ Actions brought in the Employment Tribunal of England and Wales, Nos. 2304383/01 and others, by George Andrew Crofts and 11 others against Cathay Pacific Airways Limited, Veta Limited and USA Basing Limited;
∑ Appeal brought in the Court of Appeal of England, Ref: A1/2004/1485, (On Appeal from the Employment Appeal Tribunal No. HKEAT/0367 & 8/03/DA) by George Andrew Crofts and 11 others against Veta Limited, Cathay Pacific Airways Limited and USA Basing Limited in relation to the Employment Tribunal’s decision regarding preliminary aspects of Employment Tribunal claim Nos. 2304383/01 & others;
∑ Complaint filed in the Superior Court of the State of California, County of Los Angeles, USA, Case No. BC259052, by Hendrick Van Keulen and 8 others against Cathay Pacific Airways Limited, USA Basing Limited, Veta Limited, Tony Tyler and Philip Chen Nan-lok;
∑ Proceedings filed in Australia by Mark Andrew Evans and 4 others against Cathay Pacific Airways Limited and Veta Limited;
∑ any complaint, action, suit, cause of action, proceeding, arbitration or demand (in each case whether contractual, tortious, statutory or otherwise) relating to the employment of any of the Terminated Pilots by Cathay, Veta Limited or USA Basing Limited prior to the date of this Agreement or the termination of such employment.
“Relevant Person” means Cathay and any subsidiary or holding company of Cathay (or any subsidiary of a holding company of Cathay) and their officers and employees (both past and present).
“Terminated Pilot” includes the estate of Gregory Stephen England.
(b) Each of the undertakings of the HKAOA set out in sub-clause (a) above are conditional upon the membership of the HKAOA passing a resolution in favour of the terms of the offer set out in this Agreement and the offer letter on 15th February, 2005 (or such later date as Cathay and the HKAOA may agree).
DAMAGES NOT AN ADEQUATE REMEDY
The HKAOA acknowledges that damages will not be an adequate remedy for a breach of the undertakings in Clause 3 above and, therefore, Cathay is entitled to an injunction to prevent a breach of such provisions or a continuation of any such a breach.
PUBLIC STATEMENTS
Both Cathay and the HKAOA agree not to make any public statements concerning this Agreement without the prior written approval of the other party.
AMENDMENT, WAIVER ETC.
(a) No failure on the part of any party to exercise and no delay on its part in exercising any right or remedy under this Agreement shall operate as a waiver of such right or remedy, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise or the exercise of any other right or remedy.
(b) No provision of this Agreement may be amended, waived, discharged or terminated orally but any such amendment, waiver, discharge or termination shall only be effected by an instrument in writing signed by both Cathay and the HKAOA.
SEVERANCE
Any provision of this Agreement prohibited by or which is unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement, and where the provisions of any such applicable law may be waived, they are hereby waived by Cathay and the HKAOA to the full extent permitted by such law to the effect that this Agreement shall be valid and binding and enforceable in accordance with its terms.
GOVERNING LAW
Cathay and the HKAOA agree:
that this Agreement is governed and is to be construed in accordance with the laws of Hong Kong; and
irrevocably and unconditionally to submit to the exclusive jurisdiction of the Courts of Hong Kong to hear any dispute, complaint or controversy relating to this Agreement and waive any objection to proceedings in such courts on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.
Join Date: Mar 2004
Location: Asia
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Greetings chaps.
Please find attached a document which was sent to me for distribution to all 49ers for your perusal.
It has been compiled by a chap who is the HR Director of a very large company in the UK, albeit not in the aviation business.
This chap knows a couple of us 49ers personally and has been following the "goings-on" with professional and personal interest.
He volunteered to present his view of our situation to us, bearing in mind that he has nothing to gain, or lose for that matter.
In my opinion it is worth reading, at least twice!, and circulating to every member you know.
Regards,
Xxxx
I have put together my thoughts regarding the offer that has been made to the 49ers and given my limited understanding of the situation I do have concerns regarding the deal on the table.
Before explaining my thoughts regarding the proposed deal I think it is important to recognise that in this type of situation, where emotions are frayed, that it is very easy to be critical from a distance. I am not party to all of the information or history and I would not want to under estimate the difficulties of conducting this sort of negotiation.
Its very easy to take a side swipe at the negotiating team and it is not my intention to do so, rather my brother has asked me to give him and you my thoughts with a view to helping him make his decision. If you think my thoughts would be of benefit to others in this situation then please feel free to pass this around as you feel fit.
Introduction
I have a number of areas where I think clarification would help the decision making process and the consultation meetings may go some way to providing the necessary clarity.
Negotiating Parameters
When I conduct negotiations I would normally expect to agree the parameters for the negotiations prior to any discussions taking place. I believe quite strongly that the good negotiator is the person who has the majority of the people that they represent “on side” prior to any negotiation taking place.
It would be interesting to know if the negotiating parameters were actually agreed between Mr. Gardner and the HKAOA/ 49ers prior to the negotiations taking place?
If these parameters were agreed then it would be useful to understand how far apart the desired position is from the deal tabled by the Company. If the gap is substantial, then it would be extremely useful to understand why the Company feels unable to close the gap further. This information should help HKAOA/49ers understand whether or not the offer from the Company is reasonable.
Mr Gardner states in the offer letter that the Company is not able to make further concessions (regarding the deal of offer). I think it would be very useful if Mt. Gardner could given some background on the concessions he has already negotiated from the Company and if he could explain why he feels this is the final offer. Personally I would find this language rather irritating because ultimately this negotiation is necessary because of the unilateral action taken by the Company. I am also “slightly” cynical of the final offer scenario. Personally, I have had to back tract on a number of occasions before delivering the final final and final offer. There is a real skill in making the judgement on whether or not this is actually the final offer or just a negotiating ploy.
On a slightly different point I understood from the letter dated 16th December, that Mr Gardner conducted negotiations on behalf of the 49ers without support from either colleagues or 49ers. If this is the case then I think this must have been very difficult (not to mention stressful) for Mr Gardner. I have been involved with negotiations with employee representatives (trade unions) for a number of years and I know that they would never allow their position to be negotiated by a single person because it would leave them in an extremely vulnerable position. If their membership do not like the deal, they will be attacked for being “in management’s pockets” and I have heard those words on a number of occasions. Ultimately, the deal can be wrecked by a perception of foul play when in fact the actions were totally honourable.
I would not negotiate with a single person, rather I would want all the interested parties to sit round the table and thrash out the deal. It is too easy (and tempting) to intimate a single person. Normally I would expect a negotiating team from both sides to be present and perhaps going forward it would be appropriate to support Mr. Gardner with a negotiating team which includes representatives from the aggrieved employees i.e. the 49ers. This is probably something that the company would not like but difficult negotiations should be tough and hard work. There is a lot of psychology in these situations, which should be exploited For example, it is much easier to be tough when you are not isolated on your own and conversely it is much harder for the Company representatives to negotiate directly with those that they dismissed. Ultimately, the Company can refuse to negotiate with this more formidable body – then you have the choice to continue or not with the legal action. Perhaps no deal is better than a weak deal.
When looking at any negotiation it is very useful to understand the background detail, which clearly I do not have, however, an obvious question is why now? What has brought the Company back to the negotiating table when I understand that the Company has resisted any meaningful negotiations with the pilot representatives regarding the dismissal of the 49ers for the last 3½ years.
I am aware that the HKAOA have won a major case in the labour courts of Australia – sorry bit vague on the detail – and it would be interesting to understand how influential has this been on the Company’s desire to negotiate given the pending court cases. I do hope that the message regarding Australia has been fully circulated because this is good news after a very long time and clearly shows tenacity bears fruit! - Not to mention a rather public and unpleasant court case.
Legal concerns
I am assuming that the following would be some of the desired outcomes from the proposed legal action:
Money in the pocket for those directly affected.
An admission from the company that they were wrong and that they have totally rescinded the previous dismissals.
And most importantly:
A cast iron guarantee from the Company that they will not behave in such an unethical manner towards any employee in the future.
In judging the reasonableness of the offer Mr Gardner seems to be indicating that there is some doubt on the legal outcome from the forthcoming legal action. I believe it is crucial that the membership understand what these concerns are especially in the light of the legal victory in Australia. This knowledge will be very important in making an informed choice.
The offer
I am not intimately knowledgeable about the operational procedures of the Company but given my limited knowledge, I would question whether the deal is sufficient given the loss of earnings and stress suffered by the 49ers and their families’, colleagues and friends. Furthermore I think that the deal, as it currently reads, offers little long-term security for any pilot.
Compensation
There seems to be no compensation for loss of earnings/provident fund for the years since dismissal irrespective if the dismissed employees wish to return to flying or not. It would be useful if Mr Gardner could explain why he is prepared to recommend the deal on this basis.
Interview process
It states in the letter that professional competence would be assumed. Given this I am struggling with the imposition of a three-stage interviews/medical assessment process followed with the final decision being made by a selection panel. I think I am right in saying that this unnecessary mess was created by some secret selection panel (star chamber) in the first place?
The process seems very onerous given that these individuals are the victims of the unnecessary actions of the Company. I can accept the need to psychologically assess people (on the grounds of Health and Safety) before resuming operational flying, however, this is an interesting admission by the Company because it would appear that they are recognising that their actions may have “damaged” some people.
To assess and select people on their feelings and attitudes towards the Company is absurd. It would be completely unreasonable to expect the affected not to feel extremely angry and bitter with the Company given what they have been through.
The Company caused this situation and therefore it is up to the Company to show some compassion and work with all of their employees in order to heal the wounds.
I would assume that should a pilot be medically deemed unfit to fly on psychological grounds that this would, in effect, end their flying career with other airlines as well. In this situation I think it is reasonable and ethical to expect that the Company looks after this individual and ensures that they and their family are financially secure. This is a point that should be raised with Mr. Gardner.
Below are some questions that could be raised at the consultation meetings with Mr Gardner and the legal team.
- Why are there 2 interviews following the medical? What are the selection criteria to be used in both of these interviews - what is the difference between these interviews? If there is no real difference then only one interview should be necessary. (Unless of course this is power play from the management who want to continue to flex their muscles.)
- How is the selection criterion matched to being able to return to work given that the medical assessment regarding psychological fitness has already taken place.
- What training has been given to the interviewers/panel so that they are competent to both under take these interviews and make a decision?
- What happens to those pilots that fail this selection process. Given the situation I think it is entirely reasonable for one of the panel and the medical assessor to sit down with them and explain in detail why they have failed.
- Will the HKAOA/49ers be represented on the selection board
- What will the Company do to ensure that pilots who fail are given every support possible so that they are able to return to full duties.
- What support is the Company going to provide the families of those affected who undoubtedly have also been equally affected by the actions of the Company.
- What happens to a pilot who after receiving additional support is not able to return to operational flying? It would seem reasonable that the financial settlement on offer to those employees who choose not to return should be made available on the same terms to these individuals.
- What happens to an individual who during their “rehabilitation” training is deemed to be not up to the job?
For those pilots that successfully navigate the selection process I was wondering why they do not return immediately to the passenger fleet if that is where they were employed when they were dismissed. I do not understand all the operational intricacies but in order to reintegrate people as quickly as possible it would make sense that they start their re-training (whatever that means) on their original duties. Again it seems reasonable that a Captain would not assume the full duties of a Captain until he/she has passed the normal line checks/assessments that are routinely used. However, the convoluted route back, with no guarantees that they would actually make it back, could be read as more management power play.
It is unclear to me from the letter, but it would seem that the company is proposing to utilise differing/reduced pay scales. If I have read this correctly then this would make me question the commitment of the management team to fully integrate the 49ers back into the Company. Why rub salt into an already very sensitive wound – I sense more testosterone!
cont'd...
...cont\\\'d
Conclusion
Sadly, given the draconian actions taken by the Company I think it would sensible to be very cautious in placing too much trust in fine but rather vague words. It would be easy to be cynical about the Company’s desire to negotiate at this juncture given the court cases in Australia.
In the offer letter Mr. Gardner states that all parties have lost out greatly in this dispute. I would have to disagree with this – it is the dismissed and their families and their friends who have suffered most and this should not be forgotten. The crucial question that needs to be asked, irrespective of compensation payments, is will this offer prevent the Company from behaving in this manner in the future? If this is a no then you have two courses of action:
1. Accept it and hope for the best
2. Decline the offer and stand firm at the negotiating table. The ball is then firmly with the Company who can choose to negotiate or go to court.
Please do not take my thoughts as a reason to say yes or no. Rather I hope that they will help clarify the questions that still need to be addressed. I would strongly encourage people to attend the consultation meetings with Mr. Gardner. I also think that it would very helpful if the legal team could also be present at these consultation meetings so that members have the opportunity to put their questions directly to counsel regarding the legal concerns.
Best wishes
Please find attached a document which was sent to me for distribution to all 49ers for your perusal.
It has been compiled by a chap who is the HR Director of a very large company in the UK, albeit not in the aviation business.
This chap knows a couple of us 49ers personally and has been following the "goings-on" with professional and personal interest.
He volunteered to present his view of our situation to us, bearing in mind that he has nothing to gain, or lose for that matter.
In my opinion it is worth reading, at least twice!, and circulating to every member you know.
Regards,
Xxxx
I have put together my thoughts regarding the offer that has been made to the 49ers and given my limited understanding of the situation I do have concerns regarding the deal on the table.
Before explaining my thoughts regarding the proposed deal I think it is important to recognise that in this type of situation, where emotions are frayed, that it is very easy to be critical from a distance. I am not party to all of the information or history and I would not want to under estimate the difficulties of conducting this sort of negotiation.
Its very easy to take a side swipe at the negotiating team and it is not my intention to do so, rather my brother has asked me to give him and you my thoughts with a view to helping him make his decision. If you think my thoughts would be of benefit to others in this situation then please feel free to pass this around as you feel fit.
Introduction
I have a number of areas where I think clarification would help the decision making process and the consultation meetings may go some way to providing the necessary clarity.
Negotiating Parameters
When I conduct negotiations I would normally expect to agree the parameters for the negotiations prior to any discussions taking place. I believe quite strongly that the good negotiator is the person who has the majority of the people that they represent “on side” prior to any negotiation taking place.
It would be interesting to know if the negotiating parameters were actually agreed between Mr. Gardner and the HKAOA/ 49ers prior to the negotiations taking place?
If these parameters were agreed then it would be useful to understand how far apart the desired position is from the deal tabled by the Company. If the gap is substantial, then it would be extremely useful to understand why the Company feels unable to close the gap further. This information should help HKAOA/49ers understand whether or not the offer from the Company is reasonable.
Mr Gardner states in the offer letter that the Company is not able to make further concessions (regarding the deal of offer). I think it would be very useful if Mt. Gardner could given some background on the concessions he has already negotiated from the Company and if he could explain why he feels this is the final offer. Personally I would find this language rather irritating because ultimately this negotiation is necessary because of the unilateral action taken by the Company. I am also “slightly” cynical of the final offer scenario. Personally, I have had to back tract on a number of occasions before delivering the final final and final offer. There is a real skill in making the judgement on whether or not this is actually the final offer or just a negotiating ploy.
On a slightly different point I understood from the letter dated 16th December, that Mr Gardner conducted negotiations on behalf of the 49ers without support from either colleagues or 49ers. If this is the case then I think this must have been very difficult (not to mention stressful) for Mr Gardner. I have been involved with negotiations with employee representatives (trade unions) for a number of years and I know that they would never allow their position to be negotiated by a single person because it would leave them in an extremely vulnerable position. If their membership do not like the deal, they will be attacked for being “in management’s pockets” and I have heard those words on a number of occasions. Ultimately, the deal can be wrecked by a perception of foul play when in fact the actions were totally honourable.
I would not negotiate with a single person, rather I would want all the interested parties to sit round the table and thrash out the deal. It is too easy (and tempting) to intimate a single person. Normally I would expect a negotiating team from both sides to be present and perhaps going forward it would be appropriate to support Mr. Gardner with a negotiating team which includes representatives from the aggrieved employees i.e. the 49ers. This is probably something that the company would not like but difficult negotiations should be tough and hard work. There is a lot of psychology in these situations, which should be exploited For example, it is much easier to be tough when you are not isolated on your own and conversely it is much harder for the Company representatives to negotiate directly with those that they dismissed. Ultimately, the Company can refuse to negotiate with this more formidable body – then you have the choice to continue or not with the legal action. Perhaps no deal is better than a weak deal.
When looking at any negotiation it is very useful to understand the background detail, which clearly I do not have, however, an obvious question is why now? What has brought the Company back to the negotiating table when I understand that the Company has resisted any meaningful negotiations with the pilot representatives regarding the dismissal of the 49ers for the last 3½ years.
I am aware that the HKAOA have won a major case in the labour courts of Australia – sorry bit vague on the detail – and it would be interesting to understand how influential has this been on the Company’s desire to negotiate given the pending court cases. I do hope that the message regarding Australia has been fully circulated because this is good news after a very long time and clearly shows tenacity bears fruit! - Not to mention a rather public and unpleasant court case.
Legal concerns
I am assuming that the following would be some of the desired outcomes from the proposed legal action:
Money in the pocket for those directly affected.
An admission from the company that they were wrong and that they have totally rescinded the previous dismissals.
And most importantly:
A cast iron guarantee from the Company that they will not behave in such an unethical manner towards any employee in the future.
In judging the reasonableness of the offer Mr Gardner seems to be indicating that there is some doubt on the legal outcome from the forthcoming legal action. I believe it is crucial that the membership understand what these concerns are especially in the light of the legal victory in Australia. This knowledge will be very important in making an informed choice.
The offer
I am not intimately knowledgeable about the operational procedures of the Company but given my limited knowledge, I would question whether the deal is sufficient given the loss of earnings and stress suffered by the 49ers and their families’, colleagues and friends. Furthermore I think that the deal, as it currently reads, offers little long-term security for any pilot.
Compensation
There seems to be no compensation for loss of earnings/provident fund for the years since dismissal irrespective if the dismissed employees wish to return to flying or not. It would be useful if Mr Gardner could explain why he is prepared to recommend the deal on this basis.
Interview process
It states in the letter that professional competence would be assumed. Given this I am struggling with the imposition of a three-stage interviews/medical assessment process followed with the final decision being made by a selection panel. I think I am right in saying that this unnecessary mess was created by some secret selection panel (star chamber) in the first place?
The process seems very onerous given that these individuals are the victims of the unnecessary actions of the Company. I can accept the need to psychologically assess people (on the grounds of Health and Safety) before resuming operational flying, however, this is an interesting admission by the Company because it would appear that they are recognising that their actions may have “damaged” some people.
To assess and select people on their feelings and attitudes towards the Company is absurd. It would be completely unreasonable to expect the affected not to feel extremely angry and bitter with the Company given what they have been through.
The Company caused this situation and therefore it is up to the Company to show some compassion and work with all of their employees in order to heal the wounds.
I would assume that should a pilot be medically deemed unfit to fly on psychological grounds that this would, in effect, end their flying career with other airlines as well. In this situation I think it is reasonable and ethical to expect that the Company looks after this individual and ensures that they and their family are financially secure. This is a point that should be raised with Mr. Gardner.
Below are some questions that could be raised at the consultation meetings with Mr Gardner and the legal team.
- Why are there 2 interviews following the medical? What are the selection criteria to be used in both of these interviews - what is the difference between these interviews? If there is no real difference then only one interview should be necessary. (Unless of course this is power play from the management who want to continue to flex their muscles.)
- How is the selection criterion matched to being able to return to work given that the medical assessment regarding psychological fitness has already taken place.
- What training has been given to the interviewers/panel so that they are competent to both under take these interviews and make a decision?
- What happens to those pilots that fail this selection process. Given the situation I think it is entirely reasonable for one of the panel and the medical assessor to sit down with them and explain in detail why they have failed.
- Will the HKAOA/49ers be represented on the selection board
- What will the Company do to ensure that pilots who fail are given every support possible so that they are able to return to full duties.
- What support is the Company going to provide the families of those affected who undoubtedly have also been equally affected by the actions of the Company.
- What happens to a pilot who after receiving additional support is not able to return to operational flying? It would seem reasonable that the financial settlement on offer to those employees who choose not to return should be made available on the same terms to these individuals.
- What happens to an individual who during their “rehabilitation” training is deemed to be not up to the job?
For those pilots that successfully navigate the selection process I was wondering why they do not return immediately to the passenger fleet if that is where they were employed when they were dismissed. I do not understand all the operational intricacies but in order to reintegrate people as quickly as possible it would make sense that they start their re-training (whatever that means) on their original duties. Again it seems reasonable that a Captain would not assume the full duties of a Captain until he/she has passed the normal line checks/assessments that are routinely used. However, the convoluted route back, with no guarantees that they would actually make it back, could be read as more management power play.
It is unclear to me from the letter, but it would seem that the company is proposing to utilise differing/reduced pay scales. If I have read this correctly then this would make me question the commitment of the management team to fully integrate the 49ers back into the Company. Why rub salt into an already very sensitive wound – I sense more testosterone!
cont'd...
...cont\\\'d
Conclusion
Sadly, given the draconian actions taken by the Company I think it would sensible to be very cautious in placing too much trust in fine but rather vague words. It would be easy to be cynical about the Company’s desire to negotiate at this juncture given the court cases in Australia.
In the offer letter Mr. Gardner states that all parties have lost out greatly in this dispute. I would have to disagree with this – it is the dismissed and their families and their friends who have suffered most and this should not be forgotten. The crucial question that needs to be asked, irrespective of compensation payments, is will this offer prevent the Company from behaving in this manner in the future? If this is a no then you have two courses of action:
1. Accept it and hope for the best
2. Decline the offer and stand firm at the negotiating table. The ball is then firmly with the Company who can choose to negotiate or go to court.
Please do not take my thoughts as a reason to say yes or no. Rather I hope that they will help clarify the questions that still need to be addressed. I would strongly encourage people to attend the consultation meetings with Mr. Gardner. I also think that it would very helpful if the legal team could also be present at these consultation meetings so that members have the opportunity to put their questions directly to counsel regarding the legal concerns.
Best wishes