Stuck in the Terminal with the Gates Firmly Shut
Suspension and Termination of Industrial Action after Qantas
The foreshadowed lockout by Qantas on Saturday, 29 October 2011 of approximately 3000 employees affecting potentially hundreds of thousands of passengers globally, with no warning to the public, sharply focused the public mind on the powers of the Federal industrial tribunal to intervene in industrial disputes. Scenes of stranded passengers, late night Fair Work Australia (FWA) hearings and the interventions by Federal and state governments captured the public's attention in ways reminiscent of some of the nation-stopping oil industry disputes of the 1970s and 1980s.
Why, people asked, did Qantas have to act so precipitously? Why couldn't the industrial relations system have avoided such a calamity? Trade unions were quick to claim that Qantas had it all planned, which was denied vigorously by Qantas' CEO, Alan Joyce. Federal minister for Workplace Relations, Bill Shorten MP labelled Qantas' decision as a ‘radical over-reaction [with] certainly no warning.’ Approximately one month later, the unions and the Australian Labour Party (ALP) would combine at the ALP National Conference to formally respond to the dispute through policy. A plan to investigate whether FWA should be handed greater powers to arbitrate Qantas-type disputes now forms part of the ALP National Policy Agenda.
For practitioners and scholars, the Qantas dispute has created an important debate about FWA’s power to arbitrate these kinds of damaging industrial disputes. FWA's swift response to terminate Qantas' intended lockout, in a decision handed down at 2:00 am on the morning on 31 October 2011, invites analysis of the powers of FWA to deal with protracted disputes and the legislative policy drivers at work.
The purpose of this article is to do just that, by first providing the context and history of how such disputes were settled by predecessor industrial tribunals. The authors then summarise FWA's current jurisdiction and give a précis of relevant decisions that have been handed down since the passage of the Fair Work Act 2009 (Cth) (‘FW Act’). That analysis colours the subsequent discussion of the Qantas dispute. In concluding, the authors join the chorus and offer their thoughts on policy and possible changes to the FW Act.
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