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28 responses to “Qantas, Nurses, arbitration and the Fair Work Act”

  1. Michael

    Unfortunately it reflects the sad and sorry state of Australian management practice, and their complete lack of creativity and intellect that they prefer to treat their employees as the enemy rather than as partners to achieving a mutually beneficial outcome – that is survival of the organisation, greater efficiency and, in the case of business, increased profits. These things can be achieved without offshoring, but it takes a bit more effort – but clearly its too hard for the smartest guys in the room.

  2. Sam

    That’s something the Gillard government needs to take into account as it considers the future shape of the Fair Work Act.

    So what are you suggesting, Mark? Because the bosses want to use arbitration, that option should be foreclosed by amending the Act?

    Without question, Qantas management thought they would get as better outcome by arbitration than bargaining. That might also be true of the Victorian Government and nurses.

    But there will be times when the employers will be in the superior bargaining position and unions will be very glad to be able to go to Fair Work Australia to get it sorted.

    For instance , and while this is not an Australian example, bear with me, in the US as I write there there is a lockout of professional basketball players. It has been going on for months and will soon see the cancellation of the 2011-12 NBA season. The team owners are demanding that the players take significant pay cuts. (Yes, the players make millions, and are hardly the downtrodden proletariat, but that is not the point.) The team owners will win this dispute because they are all billionaires and for them owning a basketball team is a hobby. They don’t need the games to be played. For the players, on the other hand, playing basketball is what they do for a living. The owners will simply hold out until the players capitulate. It is an extreme example of one side having all the bargaining power and the players (and their union, which is helpless and hopeless) would love an arbitration option, but it does not exist.

    A weird example inapplicable to Australian work places? Yes, in its detail and extremity. But the principle employers could easily hold all the aces in some wage bargaining situations.

    I’d be very wary about making big structural changes to the IR system on the basis of one or two disputes, that aren’t even finished yet.

  3. Sam

    Are the so-called managerial prerogative issues explicitly excluded from arbitration under the Act?

  4. Paul Norton

    Sam @2, any prospect of someone doing a Kerry Packer and signing on the NBA players to play in a rebel league on better contracts than what the current owners are offering?

  5. Sam

    Paul 6, certainly not in the short term. The owners/teams own the stadiums and TV deals are all tied up.

    Mark 5,7: if all the issues are on the arbitration table, then there’s no need to change the Act (in that respect, in any case.)

  6. Sam

    Mark’s point about ideological inconsistency by the employers is very well made. Of course, senior executives are not by nature ideologues; they are businessmen (and occasionally women). They just want to make money for themselves and the shareholders* in the companies they run. Whether this is done by obtaining minimum pay rises for workers, and maximum managerial prerogative for themselves, by arbitration or by bargaining is to them a trifling detail.

    On the other hand, Peter Reith, who really is a true believing ideologue, has lamented the return to arbitration.

    * And as someone whose super fund owns Qantas shares, I say more power to them. OK, I am partly joking.

  7. Sam

    It’s mainly but not entirely Reith who is causing headaches for Abbott. There’s a backbencher (Biggs? Briggs?) who i think was a ministerial staffer in the office of one or other Howard Government Workplace Relations ministers who is also making a nuisance of himself.

    Why the Liberals are choosing to play on the only turf where Labor has an electoral advantage, and the only area of policy where Gillard actually knows what she is talking about, is anyone’s guess.

  8. Sam

    Let it not be said that the Victorian Government cannot be generous to public sector workers. They just agreed to an outrageously high salary settlement with the cops, giving them a better deal than even the ambit claim made by the police union.

    Now, however, they are threatening to send striking nurses to jail. Funny, that. Presumably prior to imprisonment the nurses will be arrested by the well-paid, and ever so grateful, police.

    Of course, this is the Baillieu upper class, private school prefect personality at work — cave in to the powerful, while viciously attacking the unpowerful. (it’s only a coincidence – cough, cough – that most police are men and most nurses are women.)

  9. Howard Cunningham

    If you don’t like the Baillieu brand of Liberal, you can stick with the Abbott brand of Liberal and keep your complaints to yourself.

  10. Mick Peel

    I wouldn’t mind betting (not that I’m a betting man, however) that there’s a bloke lurking in the shadows somewhere named Peter Wilson (not sure if I’ve mentioned this to you before, Mark) – he’s been a right-hand man to Rieth over many years.

  11. Sam

    Peter Wilson wrote a paper for this year’s the HR Nicholls Society conference, “Impact of Fair Work Act on Australian Workplaces: A Practitioner’s Perspective.”

    Most of the rest of the speakers were the usual suspects including Reith and John Lloyd, the former head of the ABCC.

    All their contributions are on the HRN website, and handily there’s an archive of past papers.

    Quick quiz (answer at the bottom, no peeking).

    Who said this at the HRN Conference in 2002?

    “The Government must be highly selective about the cases where it seeks to intervene. In general, the parties to an industrial dispute should make their own arrangements, occasionally with the Commission’s assistance, but nearly always without any government involvement. ”

    Answer: Tony Abbott MP.

  12. Mick Peel


    That is not the same Peter Wilson. This is the one I refer to (here’s the mentioned from the article, but reading in full gives better context).

    “Conspiracy theories were rife in Cairns this week, but the biggest centred on the friendship between O’Day and his former NSS colleague, Peter Wilson, who joined Peter Reith’s staff eight months ago.”


  13. Mick Peel

    And also from the 1997 dispute in Cairns:

    “Union officials have made much in the past couple of days of Mr O’Day’s links with Mr Peter Wilson, an adviser in the office of the Minister for Workplace Relations, Mr Reith.

    “Mr Wilson joined Mr Reith’s staff earlier this year, but until two years ago was employed as a senior manager for NSS where his boss was Mr O’Day.”

    Shadowy figures are just that – shadowy.


  14. Mick Peel

    Howard, in the usual way that one complains about being called a cancer.

    And, speaking of which, an excerpt from the AFR in December 1997:

    Battle plan for the docks. (NFF and Fed Govt plan to break the waterfront union).
    Source Australian Financial Review ( N88 )
    Date Issue 12/12/97
    Page(s) 25

    Reith, meanwhile, had hired a new staffer with experience on the docks. Peter Wilson was former operations manager of Northern Shipping and Stevedoring in Townsville. He had also worked for Richard Pratt in Melbourne where he had produced a shipping report for Pratt Industries which is a heavy user of maritime and shipping services. Reith was keen to build up the maritime experience in his office. And he also wanted another report on waterfront reform, a fact which created some tensions with Sharp and his adviser, Greg Bondar.

    Wilson recommended another former Pratt employee, Dr Stephen Webster, to produce the new report for Reith. Webster had also worked for former Opposition Leader Andrew Peacock and former Premier of Tasmania, Robin Gray. Webster caused waves early on. He made it clear he did not want to work for Trebeck.

    The strategy addressed ways for the Government to convey concern about privileged groups in the community (wharfies) and improving international competition. In October, the union went on alert when news emerged that Northern Shipping and Stevedoring was preparing to load a ship with non-union labour in Cairns. The company’s plans had been conveyed to Peter Wilson in Reith’s office and expectations were high that the show-down had begun. But the drama fizzled when the ship refused to dock, leaving the MUA with a victory and the Government sheepishly distancing itself from the action.

    On October 3, Stephen Webster’s report was delivered to Reith. Like Trebeck’s report before it, the key was an examination of how to introduce a non-union stevedoring force on the docks. A year has gone by since the first Trebeck report with no real progress. The Government is now moving towards an election and the element of surprise on the docks has gone. The union, for the moment, has the upper hand, while John Howard has been forced to defend himself against extraordinary suggestions that government money could have changed hands over the trainees now in Dubai.

    It’s enough to make a member of the H. R. Nicholls Society weep.

  15. Sam

    Howard, ask Fonzie to sort it for you, as per usual. (Sorry Mark, couldn’t resist).

  16. Lefty E

    Hah! QANTAS management somehow conspire make even bigger idiots of themselves:


  17. Debbieanne

    My daughter is about begin her final year of nusing at UQ,very excited and nervous. Read about th Vicdisputes and was rather concerned, massive reduc tions in RN too paient ratio, filiing the gaps witn enrolled and assistance nusers. Much cheaper diploma. Only trained.cant se that going down well. She also mentioned qld health pay rates MUCH higher.
    She wants very much to practice in thr rural commumity and hoped to assist the least advatavged i wish her every sucess.
    A little bragging, over the last two semesters she has managed tg deans award fo straight 7’s.am very proud

  18. Robert

    Mark @ 5: It seems to me that the “legal experts” who are saying that FWA will not arbitrate on the job security clauses are relying on jurisprudence around WorkChoices cases.

    By way of background, this is what the Explanatory Memorandum to the Fair Work Act says about “matters pertaining”:

    669. The matters pertaining to the employment relationship formulation is of long standing. Under both the Industrial Relations Act 1988 and the WR Act prior to 27 March 2006, collective agreements had to be about matters pertaining to the employment relationship. Since 27 March 2006, a term of a workplace agreement that was not about such matters was ‘prohibited content’. Between 1904 and 2006, the formula was also used in the definition of ‘industrial dispute’ under successive Commonwealth industrial relations statutes.

    670. Although the precise words used have changed from time to time, the courts have construed each manifestation of the formula in a similar way. There is substantial jurisprudence about what the phrase means. It is intended that paragraph 172(1)(a) should be read in line with that jurisprudence. The courts’ interpretation of the formulation has evolved over time in line with changing community understandings and expectations about the kinds of matters that pertain to the employment relationship, and it is expected that this approach will continue.

    671. Whether a particular term is about matters pertaining to the employment relationship will depend on its precise construction, as well as the circumstances surrounding the particular employment relationship. Frequently, it will be obvious that a term pertains to the employment relationship – e.g., a term about the payment of wages or a term about hours of work and shift patterns. However, there are some terms where it is not so immediately clear whether the terms are about matters pertaining to the employment relationship (see, e.g., the discussion in Re Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004 [2004] AIRC 1064.

    672. It is intended that the following terms would be within the scope of permitted matters for the purpose of paragraph 172(1)(a):
    • terms relating to particular staffing levels (subject to any other applicable legislative requirements or limitations) particularly if those terms are aimed at ensuring the health, safety and well-being of employees;
    • terms relating to conditions or requirements about employing casual employees or engaging labour hire or contractors if those terms sufficiently relate to employees’ job security – e.g. a term which provided that contractors must not be engaged on terms and conditions that would undercut the enterprise agreement;
    • terms that would provide that casual employees are converted to permanent employees after a set period of time;
    • terms that would prevent an employer from seeking a contribution or indemnity from an employee in respect of personal injuries or losses suffered by that person where such injuries or losses were cause by the employee in the course of their employment.

    673. The following terms would not be intended to be within the scope of permitted matters for the purpose of paragraph 172(1)(a):
    • terms that would contain a general prohibition on the employer engaging labour hire employees or contractors;
    • terms that would contain a general prohibition on the employer employing casual employees;
    • terms that would require an employer or employee covered by to the enterprise agreement to make a donation to a political party or charity;
    • terms that would require an employer to source only products from a particular supplier or Australian made products (unless, e.g., such a term was directly related to employees’ job security);
    • terms that would require an employer to engage or not engage particular clients, customers or suppliers who had agreed to commit to certain employment, environmental or ethical standards (unless, e.g., such a terms was directly related to employees’ health and safety);
    • terms that relate to corporate social responsibility, e.g., terms requiring an employer to participate in charity events or commit to climate change initiatives.

    674. The permitted matters in paragraph 172(1)(a) are focussed on the employment relationship. One effect of this is that terms that are about the relationship between an employer and an employee organisation may not pertain to the employment relationship, even where the terms are closely associated with the organisation’s representation of employees under the agreement.

    As you can see, there is scope for job security clauses to be included in the arbitrated determinations.

    However, some of the union claims (the construction of a new hangar for A380 maintenance work springs to mind) are very unlikely to be approved.

  19. Chris

    Debbieanne said:

    Read about th Vicdisputes and was rather concerned, massive reduc tions in RN too paient ratio, filiing the gaps witn enrolled and assistance nusers. Much cheaper diploma

    Is that really a bad thing? Nurses are taking over work which was formerly just the domain of doctors because its been evaluated that they have the skills to do the job. I don’t think it would be surprising to discover that there is also some work that university trained nurses do that enrolled nurses are able to do.