There’s been a fair bit of discussion around the traps about Adam Bandt’s statement yesterday about what the government should have done, or left undone, with regard to the Qantas dispute. Some of Bandt’s post seems to echo criticism from journalists and the opposition of the Gillard government’s role, for instance by saying:
… And it should have entered the negotiating fray itself, helping bang heads together.
Leaving that aside, though I think there is an element of piling on Julia Gillard at work, Bandt makes a number of claims, one based on a factual error, and the other encompassing a confusing elision between claiming the “government shouldn’t be taking sides” (which the government itself has claimed not to be) and an apparent belief that a suspension of the bargaining period, as opposed to a termination, would somehow have resulted automatically in industrial victory for the unions. Or perhaps Bandt is making or implying an argument that it’s undesirable, generally, for ‘third parties’ to intervene in industrial disputes.
Let’s get a number of facts on the table, first:
(a) The government, represented at FWA on behalf of the Minister, Chris Evans, argued either for a termination of the bargaining period, or for a 90 day suspension. That’s clear from a reading of the decision by Guidice J, Watson SDP and Roe C, right at the outset. The government was actually being consistent with the thrust of its own Act, that such matters ought to be subject to judicial determination, and, like the other parties involved, was following normal industrial practice by envisaging a range of outcomes which the tribunal might give effect to. It’s important to recognise this, and as far as I can see, it’s been completely overlooked, because it is highly pertinent to the Tony Abbott line that the Minister should have used the powers available to him under section 431 of the Fair Work Act.
(b) Bandt says:
Ever since John Howard’s WorkChoices, the spirit of which still lives in the current legislation, many unions have sought to bargain for an outcome and avoid arbitration. Why? Because the outcomes you’re likely to get in an arbitration are widely thought to be less than what you might get in bargaining. Especially over matters that impinge on managerial prerogative. Like job security clauses, a key claim of the unions in the Qantas dispute, because they are concerned about ‘offshoring’ and contracting out of their work.
Partly, this is wrong, and partly, again, it’s confused. FWA gives greater scope for arbitration than WorkChoices in the case of low paid workers, in particular, and where both parties consent to conciliation and arbitration. It’s true that the provisions regarding the availability of arbitration to settle disputes are not substantially changed from WorkChoices (with a very important exception, which I’ll come to). But this gives the lie to his logic. How could unions have been seeking to avoid arbitration, when arbitration has not been a legal option except in exceptional circumstances such as would trigger the termination of a bargaining period? It doesn’t make any sense, and in fact, the whole thrust of the reforms since, arguably Paul Keating’s Industrial Relations Reform Act 1993, and certainly since the Peter Reith/Cheryl Kernot Workplace Relations Act 1996, has been to de-emphasise and radically restrict arbitration.
Certainly, from WorkChoices onwards, the choice has simply not been there for unions. So it’s hard to know what he’s saying here. That’s why various analysts of Australian industrial relations have characterised the system we had as ‘voluntary collective bargaining’. One of the most important changes ushered in by the Fair Work Act was to remove the right of management to refuse to negotiate with unions. So we have probably returned, not to a regime which offers a choice between conciliation and arbitration and bargaining, but to one of compulsory collective bargaining. The enhanced provisions for union recognition, and for good faith bargaining, are precisely what business has been screaming about. So I think Bandt’s claim that “the spirit of [WorkChoices] still lives in the current legislation” needs heavy qualification.
Under WorkChoices, the most likely outcome would have been freer rein for Qantas to pursue a naked strategy of de-unionisation. Peter Reith’s very vocal calls for ‘free collective bargaining’ are exposed for what they are by his references to Margaret Thatcher in the same breath.
What I suspect Bandt actually has in mind, and this is taking us closer to the crux of the matter, is the degree to which unions in strong bargaining positions have been able to influence (but not determine) managerial strategy through “job security clauses” and restrictions on contract labour, or agreements that contractors be paid the same as employees. Typically such agreements have been reached in labour intensive industries where time constraints (and penalties for non-completion) are a factor, and where competition is minimal. Construction is the obvious one, and mining is another.
But I’m unclear as to why Bandt thinks, or could be read as thinking, that issues regarding job security may go more in Qantas’ favour under arbitration. I don’t see any reason why they wouldn’t fall within the scope or ambit of the dispute, because they are “employment matters” (and Australian industrial jurisprudence has always sought to wall off management prerogative). Certainly the Act envisages the distribution of labour between full time and other employees and the role of contractors as matters that can be subjects for an enterprise agreement. Another very significant change between WorkChoices and the FWA was the removal of the severe restrictions of matters on which parties could bargain. Given that there are few disputes in recent times which have reached the point of arbitration, I can’t see any reason on the face of it why there would be an assumption that job security clauses would not be matters on which FWA would make a determination.
It may be that he is thinking of the very strong line in the sand business is drawing in resisting these clauses, which is, again, one of the key planks of the anti-FWA campaign.
The assumption by some, such as Dr_Tad, who have seized on Bandt’s rather confused remarks (and he does a nice line in trying to be happy and shiny and appealing to everyone – “reach a negotiated outcome by supporting the whole of the airline, management and employees, with an eye to the country’s long-term interests”) that a suspension of the bargaining period would somehow lead to a victory for the unions seems to me to be highly questionable. Syndicalist sentiment aside, sometimes, sadly, the workers united are defeated. It’s not clear to me that the interests of pilots, baggage handlers and engineers are identical, nor that they would not become separable during a 90 day bargaining period (and let’s not forget, 42 days are potentially available under the FWA decision). But, more broadly, I’m unable to see:
(a) that the industrial muscle exists to produce an outcome favourable to workers’ desire to restrict the company in its pursuit of its strategy of offshoring, cost-shifting and outsourcing;
(b) how, in the absence of arbitration, Alan Joyce would be shifted from his stated intention to again lockout the workers. All he would have to do is endure negotiations for 90 days before the bargaining period recommenced, and there’s no legal lever to exert pressure on Qantas to negotiate on job security, which it’s made clear it does not want to do. With arbitration, there is. Or, at least, there potentially is. It needs to be remembered, and FWA took note of this, that Qantas could also, and probably would, lockout its workforce again on the resumption of a bargaining period. I doubt there’s much, if any willingness, on Qantas’ side to reach agreement on job security issues, which are what remain in the air, not pay.
In short, I don’t think Bandt has much warrant for saying this:
As it is, a Labor government has tipped its hand and sided with Qantas. Whatever Fair Work Australia decides, Qantas now knows the government will help it get to arbitration.
However, he is right about one thing. In a statement today, he writes:
“Now that the government has done what Qantas wanted and removed the workers’ capacity to protect Australian jobs, the government has a responsibility to outline how it will prevent Qantas from off-shoring its workforce.”
The first bit is wrong, for the reasons outlined above. The second is right, because it’s only through political rather than industrial action that a serious challenge can be posed to Qantas’ aim of effectively closing down its international operation in favour of joint ventures and subsidiaries which would offshore jobs and radically drive down labour costs.
“Job security clauses” would be a useful restraint on this form of aggressive management strategy, but the Australian industrial relations regime simply doesn’t empower workers to determine or even co-determine management strategy. Nor are the industrial interests of the various workers and unions identical with a political strategy to maintain airlines as providers of an essential public good (which is why, of course, Qantas should never have been sold in the first place). The specious rhetoric of Qantas management about competition and cost needs exposing for what it is (and one benefit, incidentally of arbitration is that it would allow the claims by unions that it has been cost-shifting to make its international operations appear unviable to be tested).
Similarly, we need a debate on whether or not we, like other countries, need to get back into the realm of owning airlines, precisely so that management thuggery can be curtailed and so that public goods can be provided publicly (and no one disputes the financial viability of Qantas’ competitors which are government owned). In other words, we need to resist the logic of the market and contain and constrain it through politics. We need to start reviving the idea central to the social democratic project of de-commodification, of progressively challenging and removing the inexorable logic of the market through collective action, including through action which seeks to utilise and reshape the institutions of the state.
That option exists, and it exists precisely because public suspicion of corporate behaviour and the excess involved in capitalism is fast reviving. It may well be that these hopes are incapable of fulfilment by the Australian political class. But it’s a disappointment that The Greens, in the persona of Adam Bandt, are chasing a rabbit down a bolthole by trying to score political points against the Labor government. Much more worthy of highlighting would be the mechanisms I mentioned in my post on Saturday which Bob Brown himself has sponsored, through amendments to the Qantas Act, which might usefully and fruitfully challenge corporate power.
By contrast, the argument that the bargaining period should be continued (and the Dr_Tad corollary that this would necessarily lead to victory for the unions) seems to me not making the perfect the enemy of the good, but the unachievable the enemy of the ambivalent. That ambivalence is best ended by continued political action around the central issues at stake here: the need to rein in and constrain aggressive market capitalism in the interests of workers and the public good.
Update: Adam Bandt responds in the thread and I respond in turn. I’d also observe that there’s a fair amount of extremely valuable and useful information in the thread from some commenters on the precise context of the use of various powers available to FWA under the Fair Work Act, which has been helpful to me in further informing my understanding of what is still relatively unsettled territory under a bargaining regime and legal framework that is, in some ways, novel. It adds nuance and substance to the debate, but I’m yet to be persuaded that I should shift from the broader political points made in the original post.
NB: Comments strictly on topic, please. All general comments about the Qantas dispute can go on the recent roundtable thread. All comments I regard as being unresponsive to the post will be removed without warning, and correspondence won’t be entered into. Please note that I won’t be moderating constantly, but I reserve the right to return and remove comments retrospectively.
Mark, I hope this will be followed by some critical deconstruction of the public statements of Senator Lee Rhiannon.
Where exactly did I “assume” that a suspension would lead to a “victory” for the unions? You’re just making stuff up again.
There we go again!
Given that the current troubles are largely those instigated by Qantas’ greedy management itself, covertly developed to deceive workers, the public, including especially those of the travelling public left stranded by Qantas’ antics, as well as the government, all I can say as to Bandt’s (or Hartchers) neolib nonsenses is, “go to hell”.
To think that I was going to vote Green, wtf is this???
Well, what’s the logic of your argument, Dr_Tad?
You strongly oppose termination of the bargaining period.
You say that if it is only suspended, industrial action can recommence. I assume you think that’s a good thing? (Leaving aside the fact that Joyce would just move to another lockout.)
What would be the aim, goal or point of such industrial action? Presumably to achieve the aims you think should be achieved?
Or are you just trying to educate all of us in the heresies and errors inherent in placing any faith in the institutions of the capitalist state, the ALP and Julia Gillard?
These are serious questions.
What do you (a) envisage would happen and (b) would want to happen if the result of the FWA hearing had been a suspension of the bargaining period?
Perhaps you haven’t set this out clearly, and I’ve had to make some inferences.
I await your clarification.
Terry, what did the old Stalinist say?
Mark, what you seem to be saying is that Joyce has kicked an own goal by forcing this dispute into arbitration, for FWA will deliver to the workers what they could not get by bargaining. The TWU certainly disagrees. Time will tell.
@1 – Terry, I’m not in the habit of reading Senator Lee Rhiannon’s statements, I’m sorry to inform you.
@5 – No, Sam, I am not saying that.
What I am saying is that I would not be anywhere near as confident as Joyce and his cheerleaders that arbitration will deliver him the outcome he seeks. Key, I think, will be whether the unions are able to lead persuasive evidence to demonstrate the truth of the claims made about the obfuscation that Qantas has been engaged in through shifting costs onto Qantas from some of its subsidiaries and partners with double-coded flights.
In short, it seems the unions believe Qantas’ claims about its alleged unprofitability are untrue. Let’s see. That can now come out in the wash, which it would not do in closed negotiations.
By the way, unlike Dr_Tad, I don’t read Adam Bandt’s piece as “an attack on the Fair Work Act as a piece of anti-union legislation”.
Aside from the issues I’ve identified in the OP, a lot of it is mealy-mouthed let’s all be nice-ism (‘roll up the sleeves and bargain’, ‘national interest’, ‘interests of Qantas, management and employees’) and some of it seems to me to be just point-scoring against Gillard for the sake of it. I’m sure he’s just trying to maintain some Greens cred with unionists, but he’s tried to cover a lot of bases.
I take leave to doubt that an Adam Bandt designed piece of legislation would be all that different from FWA, particularly since in his rhetoric he shows every sign of accepting the Australian industrial law tradition of privileging consensus among the parties and negotiated dispute resolution through legal means.
MB: “But, more broadly, I’m unable to see:
(a) that the industrial muscle exists to produce an outcome favourable to workers’ desire to restrict the company in its pursuit of its strategy of offshoring, cost-shifting and outsourcing;”
I don’t get why you don’t see that possibility.
Mark, your readings of myself and Adam are tendentious to say the least.
I didn’t endorse every word of Adam’s piece (I agree the nicey-nice stuff is silly) but at least, in contrast to your position, he continues the Greens’ criticisms of the Fair Work Act, which they expressed at the time it was being negotiated and Rachel Siewert was the Senator responsible. I think stating that the spirit of WorkChoices lives in the current Act is pretty strong (hard to miss what Adam means) and places all the legal minutiae he deals with in context.
Secondly, it strikes me that your hostility to continued industrial action (and the potential for more “ambivalence”) is at the heart of our disagreement. Unlike you, I prefer the “ambivalence” that serious resistance to Qantas may or may not emerge in the course of an industrial dispute where workers are taking action to the “certainty” created when workers have their legal right to strike taken away from them and the state effectively imposes the outcome of the dispute. At least in the former there is a chance of rebuilding some independent working class organisation, confidence and politics. And of clarifying goals (which happens in struggles and not just before they start).
How the hell else will “industrial muscle” be rebuilt — but then I suspect you’re not so interested in that question?
I’ve already had my say about your accusations of “syndicalism” at Left Flank. Suffice to say, it seems you find the possibility of political action by workers outside official state institutions so alien you can’t really grasp it. Yet that’s the kind of action workers will need to take to defend themselves as the crisis deepens.
Mark, I think you understate the extent to which the Government backed Qantas’s position. The transcript of the hearings has not yet been produced, but based on the live-tweets of the proceedings, the Government formally put suspension as a fall-back position but devoted its submissions to arguing for termination. It likely only put suspension as an alternative so as not to completely antagonise the unions, and to save face if that’s the way FWA went in the end (you can imagine the headlines if the Government had backed the wrong horse).
As to the outcome of arbitration, I tend to think Dr Tad’s right to be concerned. It’s clear that Qantas decided it would get a better result from arbitration than through ongoing negotiations (largely because the union campaign has been minimally disruptive to the travelling public and has maintained popular support, while costing Qantas a lot of money). When the company is so keen for arbitration, and the unions are so keen to continue negotiations, there’s probably a good reason for it.
As to what’s in and what’s out under arbitration, it’s worth looking at the Explanatory Memorandum to the Bill. I’ve extracted the relevant portion dealing with s 172 and “matters pertaining”, for convenience. The key paragraphs are 672-680; Fair Work Australia has previously made findings about what are “matters pertaining” by reference to the bulleted lists there.
In fact, FWA considered the EM in a decision about TWU job security claims, where it was decided that a clause requiring Qantas only to engage contractors who have a deal with the TWU was not a “matter pertaining”. It is clear they are seeking that with Qantas (the latest offer including a commitment that “Qantas will require any contractors they use to have an agreement with the TWU”. That is plainly unavailable under arbitration, as the previous FWA decision demonstrates. The only way the TWU was going to win that claim is by entering into a “side deal” with Qantas — a common law contract, beyond the scope of the Fair Work Act — as a result of industrial pressure. That prospect is now gone.
The engineers’ major claim is for the construction of a second A380 hangar in Australia. The cost of building it would lock Qantas in to conducting maintenance there for the foreseeable future. There is simply no way FWA can deliver that. None at all.
The pilots are in the best position under arbitration, and they might be able to get most if not all of what they want. But then, they’re in a pretty strong position to negotiate, too.
Mark,
It is still fair to say, isn’t it, that suspension of industrial action would have been more advantageous to the workers than termination? Suspension keeps their major leverage available (withdrawing their labour) at the end of the suspension period. Termination has taken that away. Arbitration may produce a more favourable outcome for workers, but the track record for tribunals is that they are reluctant to infringe on management decisions – even if you frame them as ‘matters pertaining to the employment relationship’. Termination is the more disempowering decision for workers acting through their unions.
Shorter Dr_Tad – we should advocate a bargaining suspension in the hope that s militant class conscious union movement may emerge?
Where do you stand on the legislative initiatives favoured by Bob Brown? Are they top much of a use of the mechanisms of the capitalisy state?
“I take leave to doubt that an Adam Bandt designed piece of legislation would be all that different from FWA”
If so, you are taking leave of your senses.
Capitalist! I’m on the bus and on the phone again!
FDB – perhaps then you could point me to specific legislative alternatives to FWA which Bandt has advocated?
Eek lots of typos @13.
“FDB – perhaps then you could point me to specific legislative alternatives to FWA which Bandt has advocated?”
Not off the top of my head, but he’s on record in an opinion piece (…speech to parliament? Can’t remember…) late last year. The problems with FWA he outlined at the time roughly presage what we see now.
But if you want “specific legislative alternatives” from Adam, they’re likely to be much more radical than you seem to think.
Bandt’s speech to the IR Society of Vic is probably the one FDB is thinking of.
FDB – I’ll have a look around when I’m home later. I doubt the Greens would propose no restrictions on industrial action.
Robert – thanks – yes I thought that the Commonwealth’s position was a fallback one. I appreciate the rest of the info. I’m aware of ‘side deals’ and I alluded to that in my reference to unions in strong bargaining positions. I am not sure the TWU is or would be. Nor are commitments to build a new hangar likely to be won through industrial action.
Here again I think we need to recognise how limited in utility industrial action in the Australian system is in shifting management strategy.
The other relevant counter factual is Qantas’ intransigence and willingness to use the lockout weapon.
Mark, you have a bizarre habit of argue with what you think people might mean or say, rather that what they do say and write. It does not demonstrate insight or cleverness on your part, but an inability to make a point that is an actual disagreement (rather than a red herring) and then defend it.
Always. With. The. Shifting. Goalposts.
So, Mark, what’s the benefit of having the AFW? It does seem like a nanny state institution.
Work relationships should and can be negotiated by employees and employers within the existing legal structure, surely? Of course it is possible for either side to destroy the basis for the relationship, by forcing the enterprise into bankruptcy. But this is in neither’s interest and it seems reasonable, to take for granted a measure of maturity.
In fact, the AFW seems like another part of the economic engineering, which seeks to influence workplace relations for dubious gain. Here in Germany there are often lengthy and disruptive workplace disputes, which sometimes turn violent, but i would be surprised if industry here were less efficient than in Australia.
It seems an incredible infringement on personal rights to be able to in fact prohibit strike action. Why shouldn’t workers be able to demand the conditions under which they are prepared to work?
Fairly clear the Govt’s argument for “termination” rather than “suspension” was geared primarily at how “suspension” would appear on the front page of the Daily Telegraph (ie – kill the issue, don’t drag it out).
On Bandt’s attacks on Gillard et al, I think Mark hit it on the head when he characterised it as scoring points against Labor. He’s clearly looking at the next election and searching for dividing lines to position himself against the future Melbourne Labor candidate. In that regard, he’s engaged in this debate like a left-wing Tony Abbott – it’s all about political benefit.
@23 – That’s rather intemperate Elizabeth I must say.
Alex,
that’s easy to say and baseless criticism of someone who has a fairly long record in Industrial Relations. Of course you have a right to your opinion, but it’s just total speculation– unless you have some inside information, which you’d like to share?
What you’re really saying, if you’ll excuse the rudeness, is that you are concerned about Labor’s record with regard to Industrial Relations.
Mark @14
You give the game away because you show zero interest in workers making political history through self-activity. Australian workers have done this. The 1969 O’Shea strike rendered certain laws inoperable because the state no longer felt confident to impose them. The laws eventually had to be rewritten to reflect this.
It took until the 1980s (during which time there was a government sacked and two recessions) for the state to really regain control politically. Your strategy is about strengthening state regulation of the workers’ movement, which only limits the possibility of any building an organised working class politics up to the task of resisting capitalists like Joyce.
Article outlining what the unions want (not paywalled at least at the moment):
http://www.afr.com/p/business/companies/what_the_unions_want_1XPzVNsdfoO8ijqgol4e1O
On the detail of your post, the thing I want to disagree with most is this: ‘Under WorkChoices, the most likely outcome would have been freer rein for Qantas to pursue a naked strategy of de-unionisation.’ This seems the wrong way to think about it, as it implies that unionisation (or the rate of unionisation) is connected to how tough IR laws are – which leaves aside the connection between the laws, workers’ willingness to fight/campaign politically, and the wider industrial situation.
@26 Mark – perhaps, but I think it is true. in fact you don;t address what i say but instead change the topic to my manner? (also I was immediately writing a more substantive comment, but as you can see I write slower than this comment thread moves…)
By the way I am more interested in analysing Bandt’s arguments than Dr_ Tad’s here. He did very kindly clarify his position in response to my question. But I can’t agree with the fundamental premise of somehow eschewing state action. I think, rather, there is a possibility here to put such things as co-determination and opposition to the sovereignty of the profit motive on the political agenda. I don’t think putting all one’s eggs in the militancy basket is actually an effective strategy.
Mark, there is no militancy basket. What are you talking about?
But if I have misunderstood due to my lack of cleverness or insight no doubt you will correct me.
In the meantime I have to go.
I will just add there is an element of tu toque here as I have just been accused of holding that Australian workers cannot make history, of disdaining industrial muscle etc. Neither is true.
But I have to go and meet a friend to drink some beers now.
Quoque. Phones and commenting!
Mark,
I’m aware of ‘side deals’ and I alluded to that in my reference to unions in strong bargaining positions. I am not sure the TWU is or would be.
In relation to the specific example I gave — a side deal agreeing only to engage contractors who have TWU agreements — Qantas had already offered that. The TWU was strong enough to win it. But it will no longer be available under arbitration.
I think Qantas has fired its lockout shot, and wouldn’t be able to use it again. It didn’t have the public’s support the first time, and would have even less support the second time.
But in any event, it’s all hypothetical. The unions have to work from the position they’re in, which is that they can no longer even ask for many of the things they wanted.
It would seem in fact that a more efficient workplace would be the result of close negotiation between the workforce and management about the issues under which the relationship exists, which includes among other things working conditions and remuneration– but not only. Arbitration is a far inferior solution and has the potential to lead to work culture, where there is little or only antagonistic relations between workers and management.
Australia should be positioning itself to be a high-technology sophisticated economy and not an inflexible slow paced bureaucracy. The unions need to be reformed, but they will not be reformed by the introduction of something like the FWA. There is no incentive.
[Comment deleted because it was off topic - Admin]
Lefty E – I specifically asked people not to post general comments about the dispute here but on the roundtable thread. Please only post comments responsive to this post.
@ Joe 27 — Just because Adam Bandt is the latest white, straight male lawyer to enter Parliament (from Slater Gordon no less), doesn’t mean that he isn’t also a political opportunist when it comes to remaining the Member for Melbourne.
Bandt could have spent Monday attacking the grotesque actions of Alan Joyce and his union-hating Chairman Leigh Clifford, but instead he chose to attack Gillard.
I’m on the record for believing that the Fair Work Act could be better. On the issues of right to strike and right of entry for example.
Sorry Mark, didnt get a chance to read the post first. Shots in anger!
Alex scoffed,
OK, you have issues and seem to be deluded. Self help forums are available.
So, your whole argument relies on a generalisation that everyone is self-interested. How f*in boring!
Mark @ 30
Undoubtedly you can point me to examples of where you have talked up self-activity and industrial muscle, but in this debate I stand by saying you “show zero interest in workers making political history through self-activity” and that you have been dismissive of industrial muscle (your repeated disdainful references to “syndicalism” behind the strategies of unionists, Adam and myself sound pretty clear to me). You have been entirely preoccupied with the lack of possibility of a working class political response from below and an enthusiastic defence of state intervention in IR (which, in this case, contains an implicit defence of robbing Qantas workers of their right to take industrial action).
You should watch Leigh Sales grilling Gillard on how our PM effectively caved in to Joyce’s “savvy” manoeuvres on ABC 730 tonight. Joyce has not just got what he wanted, he’s allowed Gillard to get herself into hot water again. Disastrously, Gillard’s approach makes an Abbott government even more likely.
That is an unacceptable way to characterise another commenter Joe.
Confused? I would think that his post might be a cause for regret:
This kind of low-level action is designed to pressure the other side to reach an outcome but prevent the matter from attracting the sanction of the law.
Yes whatever we do we can’t cause to much of a ruckus, it might attract the sanction of the law? I would hope that my local member was fatigued when he wrote this. If he wrote this with full clarity then methinks I would not have him for my counsel. No sir.
The whole post reeks of ideological confusion. First the government shouldn’t take side or at least a Labor government shouldn’t take the side it is s’posedly taking. But instead of the traditional leftwing view that the workers are to be supported we get industrial conflict resolution as envisaged whilst listening to Hair. As much as I love this great musical there’s a thing called industrial conflict and it happens because interests are at loggerheads.
Then there’s this:
Which is a kind of tacked on importation of market orientated thinking. The issues aren’t complex. Qantas believes that to survive it has to restructure. This will cost the labour force there. necessary?
Well let’s just say if I were Mr Bandt I wouldn’t be telling us he worked on the Ansett dispute.
Syndicalism, Dr Tad, refers to a belief that political gains are to be won through union action rather than through the state. Isn’t that what you are arguing?
And since when is Leigh Sales the arbiter of anything? Though I suppose it might be an improvement on your previous citation of Alan Kohler
In other news I agree with Adrien for like the second time evah
Kim, that is correct, but the comment itself was rank generalisation and bore no relation to anything discussed thus far. Delete it if you feel it doesn’t meet the comments’ guidelines.
In other news I agree with Adrien for like the second time evah
Musta missed the first
Kim @ 47
Sales is not an arbiter of anything. Who said she was?
Syndicalism has several meanings. The Wikipedia page is helpful. With the fading away of syndicalist movements in the 20th century, it has generally more meant the idea that industrial action can win demands without dealing with the question of state power directly. Given that Left Flank, which I know Mark reads from time to time, has spent much more time talking about the state and official politics than it has about trade unions, it’s a particularly strange accusation to make.
Adrien,
you’re implying that Bandt’s experience in another similar industrial dispute detracts from his perspective on the current dispute? On what grounds?
And, why does restructuring mean a lose for the workers? In a complex negotiation many options are available and any good solution will require compromises from both sides. With arbitration you require the input of a third party, which at best relies on testimony and consultation. This is against direct negotiation between the parties, who have the best understanding of what is at stake and what is possible. Direct understanding is the actually the best way to gain productivity increases in a broader social context.
But here we are politicking.
Where exactly did I “assume” that a suspension would lead to a “victory” for the unions?
Yeah indeed. He doesn’t make those assumptions. He makes the assumption that the Qantas dispute is of a piece with the We Are the 99% thangs (bollocks) and that these movements will be joining hands with their Arab siblings in Egypt etc…
HAHAHAHAHAHAHAHAHAHA
Check it out:
Of the Great Leap Forward foretold by Father Karl.
Certainty? I don;t think xcertainy was ever part of a neoliberal mabntra old bean. Get a job.
“”unions in strong bargaining positions”"
Anyone want to guess which union members have better wages and conditions?
(A) Members that can and have been locked out eg. Maritime workers (MUA), Pilots (AIPA)
or
(B) Members that can’t and never will be locked out eg Police , Nurses , Ambulance.
I’ll pick (A).
Adrien said:
I hope you have a job, where you don’t have to type much.
But, on this point you’re 100% wrong. Certainty was very much part of the neo-liberal mantra. The certainty of growth and prosperity.
But, people like you, try and portray neo-liberalism as some kind of heroic individual enterprise, when it goes pear shaped, ala Ayn Rand.
Well, why don’t you go and do some reading into Game Theory, and come back in a couple of weeks and tell us again how very central to neo-liberalism, the concept of certainty is.
I hope you have a job, where you don’t have to type much.
Hardy harr harr.
Certainty was very much part of the neo-liberal mantra. The certainty of growth and prosperity.
That’s not what was meant and he knows it and so do you. Neoliberalism did increase prosperity. What it decreased was security. This is the essence of the liberal/socialist argument and it persist weary because each side refuses to concede the salient points of the other.
Yawn.
Mark and others,
Thank you all for taking the time to respond to my comments on the complex issue of Qantas.
At the end of a long sitting day, I’m not going to be able to do all your points justice.
On the question of broader political approach, debates will no doubt continue. As to the claim of me only focusing on the Government, any cursory examination of my public statements about Joyce and Qantas over recent days would dispel that.
But on the questions of the niceties of industrial law, I’m afraid I have to disagree with some of your claims, Mark. Let me focus on the central point that started the thread and make some general comments about the state of the law, not this specific dispute.
Whilst it is true to say that access to compulsory arbitration has been restricted for some time, that wasn’t my point, as I think the context of my original blog post makes clear. As an industrial lawyer for over a decade, and formerly an accredited specialist in the field, I feel pretty comfortable in asserting that since Howard, some employees and unions have sometimes tried to tread very carefully in their industrial action so as to avoid matters going to arbitration.
This is because they sometimes apprehend, rightly or wrongly, that they may be unlikely to win some of their claims if arbitrated. This is especially the case for those claims that may be said to restrict managerial prerogative, like job security clauses.
Tribunals can tread vary warily when it comes to imposing restrictions on managerial prerogative. This is especially the case under the current arrangements, where FWA in arbitrating (or more correctly, making a workplace determination) must have regard to issues like ‘how productivity might be improved in the enterprise’ (s275), something workers often interpret as code for allowing greater management prerogative.
In this specific instance, my argument also explains why Qantas was so vehemently in support of the government’s application for termination of protected action (which takes you down the path to workplace determination) and why the unions wanted suspension (which doesn’t).
Malcolm Maiden gets it broadly right, I think.
Understood from this perspective, there’s no inconsistency in my argument about the place of arbitration/workplace determinations.
I would like to be able to respond to you all in more detail and to all the points raised. These are important issues. If anyone would like to organise a forum to debate these issues, I’d be keen to try to get there. Maybe you and I can share a panel, Mark, and we can cover all the other arguments you make, some of which I agree with, some of which I don’t.
For mine, the real question for the government now, having tipped the scales in Qantas’ favour, is whether they have a plan for stopping Joyce from offshoring parts of the airline. Or indeed a plan for the future of Qantas at all.
Ron McCallum, a man who knows a lot about industrial law, makes an important point when he says “It’s a real clash between us living in a global economy where some airlines run very cheaply and us trying to maintain our wage structures in this country”.
It is this that we should debate. Simply removing the right to take industrial action and then leaving the parties to sort it out against a backdrop of a workplace determination is no substitute for a public debate and an informed plan about wages and competition in a globalised world.
Due to time constraints I won’t be able to engage further on this page, but maybe I’ll see you at an LP organised forum about these issues.
Regards,
Adam
It seems to me a fair chunk of the comments, and perhaps some of the original post, have been shaped a fair bit by party-partisan angles rather than the simple facts of the case and the arguments being put. Nothing unusual there of course, but not something that is likely to be resolved by further discussion.
(although I am somewhat perplexed that Kim seems to have agreed with the fairly flimsy spit by Adrien @46 when he has done little more than show he has entirely missed the point of a large part of Bandt’s article.) e.g his singling out of Bandt’s unremarkable statement that “This kind of low-level action is designed to pressure the other side to reach an outcome but prevent the matter from attracting the sanction of the law.” The very simple point being made is that once formal legal proceedings get applied – as has now happened through the involvement of FWA – the union’s bargaining opportunities are lessened.
I also can’t see how Paul @4 has reached the conclusion he has, but anyway.
In any case, it seems to me there is a lot of unnecessary over-complicating of what are some fairly simple propositions. I don’t understand how Mark has reached some of his conclusions. It’s fair enough to suggest that Adam Bandt is scoring/making a political point by criticising the government, but that doesn’t mean he is wrong in his criticism of the Fair Work Act – nor is his comment inconsistent with many other broader things he’s said about this Act, or Rachel Siewert before him. Given all that stuff that’s on the record, including the many speeches made by Senator Siewert when the Fair Work Act was going through the Senate, I think it is fairly self-evident that a Greens/Bandt IR law would have significant differences (e.g. unfair dismissal protections, allowable matters (esp relevant in this case), workplace entry rules – and of course the BACC). It could well be the Qantas case may lead to more suggested amendments to try to more effectively address similar cases of unconscionable conduct. Having said that, I doubt very much an amended Greens Act would go anywhere near as far as Dr Tad would like to see.
It seems fairly self-evident that the unions are now in a weaker bargaining position with all industrial action having been terminated, compared with if it had been suspended. Of course, neither option gives them as much flexiblity in bargaining as they would have retained if Fair Work Australia had not intervened (as they were required to and should have), which is why the unions were aiming to keep their protected actions adequately low-level.
I think there may also be different interpretations as to what is meant by “job security”. I expect the security of existing jobs can be reasonably effectively negotiated or ruled in favour of by Fair Work Aust (at least for some period of time), but the ability to now ensure those job positions (as opposed to the individual in that position) remain over time, rather then get shifted offshore or to contractors on poorer pay seems very limited.
I also don’t see why/how Mark is disputing Bandt’s comment that the spirit of Workchoices continues to pervade the Fair Work Act. He is not saying it is no better, but I think he is clearly indicating (and I think it is clearly demonstratable on the evidence) that the Fair Work Act has mostly not taken things back to the pre-Workchoices laws (i.e. the Kernot/Reith laws from 1997, which was bascially still the system that operated, with a few minor tweaks along the way, until the Workchoices regime was pushed through the Parliament). Which, as an aside, shows just how risible the regularly repeated rant from the reactionary right is in claiming that somehow Fair Work Act has taken us back to the pre-Keating era.
It’s true that employers now can no longer legally refuse to negotiate, but as Qantas has just demonstrated, they can still use the power to force it to arbitration, which then means the range of issues which are likely to be officially ruled on through arbitration becomes much narrower. (which doesn’t mean that Qantas will need to force things to a final consclusive arbitration ruling – the unions will know this to, so they may still choose to cut deals from their weaker bargaining position rather than roll the dice of a binding ruling from Fair Work Australia.)
Mark’s own statements seem to me to confirm some of the precise points Bandt is making. Mark asks “How could unions have been seeking to avoid arbitration, when arbitration has not been a legal option except in exceptional circumstances such as would trigger the termination of a bargaining period? I’d have thought Qantas has made that obvious – because terminating the bargaining period is precisely what has occurred. As Mark also says, “Certainly, from WorkChoices onwards, the choice has simply not been there for unions.”
I don’t think – under the law as it stands – the Govt had any option other than to go immediately to Fair Work Australia for urgent intervention. I don’t think Bandt is suggesting otherwise either. I note Mark’s indication that the government argued for either termination or suspension, which I hadn’t been aware of. However, I also note XXXX @?’s view that suspension was the Govt’s fallback rather than their equal preference. I can’t say, although I do know Adam Bandt witnessed a bit of the hearings so I presume he has a fair idea of what was put forward by each party.
Having said all that (and having been reminded why I don’t comment on blogs much any more cos it takes it so much time), I actually think the government has performed fairly well on this, even if one accepts Bandt’s criticism (although that’s partly because I think Qantas management look so bad, and partly because the Coalition’s case is – yet again – intellectually dishonest and incoherent (although probably the best they could do by way of soundbites that might stick in peoples’ minds). I agree with the point that Bandt has made about the difference between termination and suspension – but how much difference it might have made in respect to final outcome/s is impossible to know.
What the wider impacts of Qantas’s bad faith actions will be – including future workplace bargaining tactics, as well as how willing people will be to believe future statements by Qantas management on their financial situation – is also very hard to predict. But I suspect it will harden attitudes on both sides of what will thus be a widening/depening ideological divide. Anyway, that’s getting off-topic.
That link makes it plain that the government didn’t just argue for either. They primarily argued for termination.
(Sorry, where I wrote that I noted “XXXX @?’s view”, I meant “Robert @12” – was going to check who it was before I pressed send, but then forgot).
I also quite like Adam Bandt’s idea of a debate on some of the wider issues he identied in his comment @57. I also wouldn’t mind some wider discussion on why is it important to have a ‘national carrier’, including one that operates internationally.
Martin B @ 58
Leigh Howard’s excellent blow-by-blow tweet stream made it even clearer. Prolonged argument in favour of termination and why it was much better than suspension, with a grudging fallback position delivered at the end.
Good to see Bandt go to the effort of commenting.
But I’m affraid Joe @43, that you’re the deluded one. My comment on Bandt’s political maneuvering was apropos as his motivation was raised originally by Mark Bahnisch in the original post.
That politicians include political interests in their consideration is not new or surprising and nor does it preclude them being nonetheless sincere in their beliefs. Do Alex or Mark want to say that Gillard has had no political motivations in mind in either the design of the FWA or the government’s role in this dispute?
This is a criticism that applies to everyone but is expressed only against those that one dislikes and so usually says more about the person making the accusation than the accused.
Hi Martin – in my original comment (@25), I noted that Gillard’s political calculation was based primarily on avoiding bad headlines in the News Ltd tabloids like the Tele. It was not (in my view) geared towards supporting Joyce or any nonsense like that.
It was aimed, in my view, at trying to kill a toxic issue. A suspension would have resulted in a headline “Gillard ruling results in months of industrial conflict” and every cancelled flight would be portrayed by News Ltd as her fault. By going for the termination, she killed the dispute, and probably hoped to kill the story.
Seems to be very vogue around here these days to bash Labor and its supporters.
The arbitration versus negotiated settlement debate is a side show. Adam Bandt comes closest to dealing with the real issue that is alluded to by Ron McCallum, which is how workers and their Unions need to deal with employers that off-shore and outsource their operations in an effort to further increase massive profits and reduce Union influence and employee pay and conditions.
Understandably, workers have found it difficult to organise offshore, but it has been done. Workers in the maritime industry on both sides of the Tasman and banking sectors in Europe have achieved legally enforceable transnational agreements, while to date, the Aviation sector hasn’t caught up. Critically, maritime Unions has been able to achieve a Maritime Labour Convention that describes minimum standards of employment across the planet for Maritime workers.
It will come as no surprise that the Federal Government has to date declined to expand the push for international labor agreements instead relylng on ridiculous trickle down neo-con economics as the panacea for the severe ills caused by globalisation.
Its worth noting that while FWA is indeed reluctant to impinge upon managerial perogative as Bandt points out, there is still is a strong but narrow line of case law that supports job security clauses being inserted into collective agreements, these cases are also reflected in the Fair Work Act’s Explanataory Memorandum (EM) in reference to what is a Permitted Matter that can be included in an Agreement and then Certified by FWA. This point is provided for at 672 of the EM which relevantly provides:
“It is intended that the following terms be within the scope of permitted matters for the purpose of paragraph 172(1)(a):
…
• 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;”
The question that runs from this is whether or not FWA will be hostile to Qantas for “causing” the workplace determination, since the conduct of the parties is a relevant consideration when FWA makes it. Under s275 (f) of the Act, FWA is required to consider ‘the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement” -So if FWA wants to they can certainly punish Qantas for its over the top response- by approving (determining) a very strong set of job security clauses if they want to. If that happens, that would be a massive own goal by Qantas. With Alan Joyce being reported as favouring certainty over all else, maybe that is an acceptable risk to the Qantas Board. Anyway, back to the side show…
Mark, kudos to you for constructing a very, very intense brief on behalf of the government for this thread and t’other.
I should have refrained from making that offhand allusion to ivory towers in my comment this morning. This brief of yours sure is more than academic.
That said, for all your efforts here I think there’s an important angle here that needs addressing. However, it’s purely about the exercise of power, not bureaucratic, legalistic niceties. It was brought to my attention by Anthony Forsyth and John Howe’s article in today’s Age—the power of direct ministerial order to circumvent Fair Work Australia.
Or, thought experiment: the power of the threat of direct ministerial order as a unilateral tool that might have forced Joyce to end his lockout.
Yes, Forsyth and Howe dismiss the possibility of an ALP government using those latent powers left over from the Howard regime with, “But it would have been a brave step for a Labor government to tell the workers and unions involved that they no longer had the right to strike: far better to pass that decision over to the industrial umpire.” But I don’t think they’ve thought the realpolitik aspect of this through (Why can’t the government just write an order that acts effectively as a suspension of industrial action, one that allows the TWU to keep their forces in reserve while forcing Qantas to get back to work? Who overturns them on that?)
So, I reckon the government could have just quietly invoked the legacy of Hawke’s unprecedented apostasy in breaking the old pilot’s union—or Hawke’s apostasy in privatising the very airline itself!—to make Qantas management believe they were going to lose access to favourable terms at the tribunal and be left with god only knows what. Call their bluff. Think of it as a Labor Madman Theory, akin to Kissinger misleadlingly telling the Soviets about his crazy mofo boss, “he’ll do it, he’ll really do it!”
If that had failed only then should Gillard have made a submission to FWA for an intervention (and as it was the government’s submission was predicated on extraordinary economic circumstances, it’s not as if it was routine).
What’s more, I think that explicit support for this forsaken political hardball element is the thing missing from Adam’s criticism of the government. I think he believes it should have been on the table. And I think he won’t say it for fear of being torn apart by you (and, er, Labor in the House) for being some dictatorial crackpot, a Jack Lang of the latte set, obviously both Stalinist and anti-worker all at the same time.
I don’t know if Adam will return here, but this line of his touches on another ‘extra-legal’ political tool I was vaguely thinking of when I tried to defend him this morning—the use of industry policy as a carrot and stick to beat/entice Joyce to tone down the bastardry.
Bandt’s comments make sense if you read them as possessing an unspoken belief in the willingness to use the power of leviathon to scare Qantas right, not to rely on either the FWA act as the last word on every IR matter or to hope that the militant potential of the old Sinatra-tour union movement would be reborn overnight.
(Okay, give it to me with both barrels. Just don’t call me syndicalist.)
Syndicalism is the new love that can’t speak its name
@61 – Martin, the relevant question here is the effect of Bandt’s interventions in shifting the focus back onto alleged failures of Gillard and off Qantas’ evil. It is correct to characterise it as a pile on. It neatly fits in with the crap that Abbott and the press are pushing.
Not to mention the all things to all people stuff already critiqued. Dr Tad can selectively read it as part of his push to invoke Clarrie O’Shea’s ghost and “smash FWA”. Meanwhile there is enough bourgie platitudinalism to keep all the Greens supporters who want to “transcend left and right” relaxed and comfortable.
Andrew @ 58 please note that “he” (I) is/am a “she”.
If unsure of gender best not to use a gendered pronoun. Not all Kims are male (or I dare say masculine).
Oops I think you were talking about Adrien! Reading too quickly is my vice.
@58 – Thanks for the comments, Andrew.
I’m just catching up with the thread now, having been out with a friend.
I’d certainly agree with the aside. Perhaps I was reading Bandt’s post through the lens of Dr_Tad’s comments, but I took the reference (reading it also together with the denunciation of Gillard and the accusation that she was siding with Qantas) as implying that FWA made no significant advance on WorkChoices in terms of protecting union rights.
It’s also true, as I’ve noted, that the general direction of IR legislation has shown a lot of continuity from 1993 onwards.
As to your observation about the party-partisan nature of the debate, I’d stand by the comment I made in the post that there is a significant element of ‘piling on Gillard’ here, and also an appeal to the Greens’ and Bandt’s immediate electoral interests, which Alex White has also commented on. I find it surprising that anyone would be surprised, but it does seem to me that there’s a sentiment about that the Greens are somehow always to be taken as making pure arguments, and never to be scoring a point. I note you don’t hold that view, but my point is that I think in this context (agreeing with Kim and Alex here) that the shift of the focus onto Gillard really is counter-productive, and also, I think, aiding and abetting the narrative that “it’s all the government’s fault” when in fact it is largely the fault of Alan Joyce and Qantas.
The tendency to ascribe all evil to Julia Gillard and Labor is one I’ve had a gutfull of.
I’d also note, with Alex, that I am also critical of many aspects of the Fair Work Act, but I think it needs to be recognised (and this is something Ron McAllum has pointed to) that there was a genuine attempt to ensure some stability in IR legislation such that it wouldn’t be so amenable to reactionary and retrogressive anti-union and worker provisions with every swing of the electoral pendulum towards the right. I’m unsure whether Bandt (and/or Siewert) have advocated a position of no restriction on industrial action, but I’d be surprised if that were so. My comment in response to FDB was a genuine request for information, and when I have the leisure, I shall try to inform myself further on this.
@66 – Nickws, thanks for that.
I think, as I said, the government was trying to remain within the spirit of how it sees the Act working. Your suggested tactic seems to me to be a little too Machiavellian.
Alex made a salient point, as well, about sheeting home the blame where it lies – with Qantas. Unfortunately, that seems to me to be obscured by the sheer level of obfuscation that surrounds anything that the government does. But, so it goes, apparently…
I’m not going to call you a syndicalist, though!
What we have had here are:
1 The unions who are frustrated because Qantas has stonewalled and, in their opinion, not negotiated in good faith. So they have started a series of low level, rolling industrial disruption to try and force Qantas to act.
2 Qantas management who are frustrated because the unions are damaging the business with their rolling industrial action. (And, in their opinion, stonewalling and refusing to negotiate in good faith.)
Part of the problem with the system at the moment is that it needs a crisis to involve Fair Work Australia in breaking this stalemate. The unions could precipitate a crisis by going on strike until their demands have been met. Qantas precipitated a crisis by grounding the fleet. Neither is desirable.
Proposition 1: The system should allow either side to request (and receive) if negotiations have failed to produce an outcome within a reasonable period.
The second common problem with arbitration is that it often involves the search for a compromise. Sounds reasonable, but compromise often means a ruling that falls about halfway between what the parties claim they want. Problem is that a party will get a better “compromise” by going into arbitration with an unreasonable demand. People will be tempted not to negotiate in good faith if they believe that a dispute will end up in arbitration. For example, if a union thinks that a 5% pay increase is reasonable it go to arbitration demanding over 10%. Worse still, it might weaken its case if it offered at some point in the negotiation to accept something less than 10%.
The story would be different if arbitrators were not allowed to compromise and had to choose the full demands of one of the parties. For the example above, under this system, the union would be smarter to go into arbitration asking for the 5% they believe is reasonable. Both sides have a strong incentive to negotiate in good faith
Proposition 2: Arbitrators should only be allowed to chose the full demands of one of the parties.
The government should consider changes to FWA in the light of the Qantas agreement.
@65 – Kristian, thanks for the comment.
That section of FWA was what I had in mind when I was questioning the degree to which the claims that arbitration would necessarily entail a dimunition of the unions’ chances of securing their aims regarding job security. As I pointed out, there is not a lot of precedent here, in part because terminations of a bargaining period in these circumstances is an uncommon occurrence, and I am also grateful, as I said, to Robert, for his information. It strikes me as a little inconsistent with what you have said, which leads me to believe that there would be the possibility of having this adjudicated by way of appeal, if the result is unsatisfactory to the unions.
More broadly, I wholeheartedly endorse your comments regarding the difficulties surrounding “how workers and their Unions need to deal with employers that off-shore and outsource their operations in an effort to further increase massive profits and reduce Union influence and employee pay and conditions”. To a large degree, I think you are right in characterising the argument over suspension v. termination as a side-show. This was part of my point in writing the post – the industrial relations system, as a whole, in Australia, has not been amenable to challenging management prerogative or shaping or co-determining management strategy, far from it. That is only exacerbated in the context of a global economy where capital’s power to organise trumps labour’s anchoring in national bargaining regimes. It’s precisely for that reason that I think we need to eschew a narrow view of this as an industrial dispute, and begin to consider how political attempts to address its causes rather than symptoms might be a reality.
Contrary to Dr_Tad’s assertions, that does not involve a mirroring of his preference for industrial action over some sort of distaste for the “institutions of the capitalist state”. It’s my view that achieving a just outcome, and one that is transformational in a social democratic sense, involves and necessarily entails a creative political strategy as well as union action.
@30 – Elizabeth:
David Peetz’ work, which is the best and most rigorous research on the causes of the declining rate of unionisation, from memory, estimates that around 30% of the variance is accounted for by anti-union legislation. I would need to look this up, but structural change to the labour market (and in particular casualisation and the rise of ‘new’ industries which do not have a union tradition and pose various severe problems for union organisation) was also very significant.
My recollection is that there have been studies which have sought to construct proxy variables for political polarisation and the rate of unionisation, but the correlation is weak.
The strongest factor at work – if one takes the rate of return to labour as opposed to capital as the dependent variable rather than the rate of unionisation (in France, for instance, there is very low union density but a higher rate of return to labour than in Australia, the UK and the US) – is probably something to do with the particular nature of differing ‘regimes of accumulation’, but that’s difficult to quantify.
It has been a long time since I looked at this stuff in terms of social science research, and I really should have another look.
Nevertheless, and this goes to Dr_Tad’s comment on the other thread, to which I presume you allude (and please correct me if I’m wrong), there is no doubt at all that labour was in a much stronger position, organisationally, as a movement, and in terms of the ability to mobilise and direct industrial power to a political end, in 1969 than in 2011.
@57 – thanks for the comments, Adam.
I’d just observe (and I don’t want to get too far into the niceties of industrial law) that ‘workplace determinations’ are not quite the same thing as ‘arbitration’, but I now have a better understanding of your point, and in particular, why you state that unions may be wary of this form of FWA intervention. As I understand it, the most common instances of the use of ‘workplace determinations’ are ‘bargaining related workplace determinations’. I further understand that ‘an industrial action related workplace determination’ is more commonly made after a period of negotiation after industrial action has failed to resolve the matters in dispute.
I think, in this instance, we’re in relatively uncharted territory under FWA in that the powers to terminate industrial action because of serious economic harm (which I’ll repeat FWA sheeted home to Qantas and not to the unions’ industrial action) have rarely been used either under FWA or by the AIRC under previous legislation. That’s one reason why I’m not at all as pessimistic about the chances of a favourable outcome, and in any case, I’d be very surprised if this whole thing doesn’t end up subject to further appeals on the meaning of the relevant sections in the FWA Act.
I also want to emphasise again that I’m personally persuaded of the plausibility of the claims that the unions have made regarding Qantas’ practices in seeking to falsely claim that its operations internationally are unprofitable. It would seem to me, as I’ve said, a distinct boon if these were tested, and there’s already a lot of material in the public domain which has not been brought into proper focus.
I think we’ll have to agree to disagree about the prospects for the unions had there been a suspension rather than a termination of the bargaining period, but as Robert correctly said, we’ll never know.
I maintain my view, though, that your comments regarding the government siding with Qantas are not sustainable.
I’d also be interested in your thoughts on the appropriate regulation of industrial action. I note Andrew doubted The Greens’ views on this would be Dr_Tad’s. I’d have been surprised, as I said before, if The Greens’ schema for an alternative or changes to the FW Act were to be massively different from the basic framework in place now, again noting as I have that I myself am critical of some aspects of the current legislative regime. But this was a genuine request for information, and when I have more time to do so, I shall follow it up.
But, generally, I think the point I want to emphasise most strongly is my desire that the discussion that has so far arisen from this sequence of unfortunate events be broadened into a debate about the necessity of limiting market logic and how the state may act to do that. It’s not my view, as I’ve stated repeatedly, that the Australian industrial framework, or industrial action *alone* is at all amenable to challenging the overweening power of capital, and I think a focus on the intricacies of this confrontation as if it were purely an industrial dispute is counter-productive in closing down some real avenues of political possibility.
I welcome your offer of a dialogue and a forum, and perhaps we could explore how that might occur.
Mark, this past day has made me think you’re the very model of a modern Labor corporatist, and that you hadn’t done a very good job of explaining the merits of this corporatism*, but this one sentence is the most succinct and positive justification for your viewpoint in this whole argument.
Yet it doesn’t change the fact that it’s perfectly natural for many people on the Left to look at the recent developments and see nothing but the same old manufactured crisis, one that can’t be regulated by stable institutions and laws. ‘Coz they don’t believe there are such stable mechanisms. This doesn’t necessarily make these people decadent enclave Greens or anti-Labor nutters.
I guess it doesn’t matter what I fantasise about, the egg can’t be unscrambled. If they were ever to hold a knife to Joyce’s throat this way they’d have done it Sunday morning, and it would be years before we learnt why he’d suddenly ordered the planes back in the air after only twelve hours.
Perhaps I should hope I’m dead wrong about Bandt secretly wanting Labor to go so far over the top, to be so ruthless (wielding a trigger given them by Workchoices!)
But… Bob Hawke and Sir Peter Abeles. Australia has watched a movie in this very genre before, they’ve seen a reasonable Labor government tear up the rule book, get away with it, and continue onwards pretending as if nothing had ever happened. (Did the Howard government ever exploit the pilot’s strike to justify their own IR law changes? If not then that was a pretty good example of the ALP getting away with their actions.)
*Corporatism as in government/union/private sector policy synthesis, not subserviance to Big Biz, lest people get any ideas.
I’d also note my agreement with the second part of that formulation, as noted in the OP. That goes to my view that we need to open a debate about how best to address the related phenomena of the exaltation of profit above all else, offshoring/outsourcing and corporate managements determined to act against workers’ and the public interest. I think this has to transcend the limitations of union action alone, in a climate where the particular nature of the industrial relations settlement in Australia has always been hostile to any infringement of “management prerogative” and inimical to any co-determination by workers of management strategy, or indeed, any real democratic determination of the need to subordinate corporate interest to the public interest.
As well as adding a link to Adam Bandt’s response, and mine to his, I’ve added a bit of a postscript to the post:
@79 –
Nickws, that sentence is an observation, not an endorsement!
Actually, I’m kinda an old fashioned social democrat. I don’t think, in any case, corporatism (a la the Accord) is viable anymore, and I’m on record (way back in 1998) as saying that I thought the debate over whether the Accord was corporatist was pretty hohum. There’s a whole other story about what was going on then, whether Sweden in the South Pacific was a good thing, or a possible thing (which was answered in the negative), and what was at play in terms of the exhaustion of Labo(ur) politics, etc, which, coincidentally, I’ve actually been revisiting by rereading Beilharz, Johnson, Frankel and suchlike, but I think it’s straying off my own strictures about being on topic to say more.
But I am getting a bit grumpy about how *everything* is always the fault of the Labor government. A bit more focus on Alan Joyce, and Qantas, and less on the supposed sins of Julia Gillard, might be to the good, I think.
Plus it’s bed time!
Mark, what evidence do you have that this dispute is about the exaltation of profit above all else?
Are you saying that companies should not make a profit and should run at a loss?
Or are you saying that where a company is making a profit, marginal though it is in return on the capital of its investors, as Robert Merkel has pointed out, but which you have disputed- although without evidence, (i.e., typically, workers superannuation funds) it should surrender those profits to its workers and run itself as a non-profit organisation and return nothing to its investors?
Or are of that school that says that “the government should subsidise it”? In which case what poor group of unsubsidised taxpayers have you identified as the taxpayers the government should tax in order to pay for it?
Finally, where do you get the presumption to associate workers’ sectional interests with the public interest?
I think plenty of us here are old enough to remember the time when every year just before Christmas the brewery and transport unions ran their strikes so as to threaten the brewers profits, to meet their sectional interest against the public interest (however ignoble you may think that interest is in drinking beer over Christmas) to realise that there is no correlation at all between union sectional interests and public interest.
I think it is about time you took a long sober look at your understanding of the reality of industrial relations and basic economics in this country and stopped throwing out opinionated but uninformed shibbeloths.
Mark
@ 72 you write, “The tendency to ascribe all evil to Julia Gillard and Labor is one I’ve had a gutfull of.”
There was no reason to attack Gillard either before the lock-out or when it broke. But when it became apparent that both the operation of the Act and her use of it would lead to Joyce getting what he wanted, then it suggests a very serious problem with either the Act, her use of specific parts of it, or both. Joyce may have put her in a very difficult position, but it’s the law she drafted that let him do that.
And if you read the criticisms of Gillard (mine perhaps being the harshest here) they are not because she is “evil” but because her actions (the law, her use of it as PM) have given Joyce — a real evil capitalist — an immediate victory. Luckily, Abbott hasn’t gotten much direct traction from this, but it’s hardly panning out as a great step forward for the government. Even at the level of the government’s flailing authority, it’s not a good look to have “decisiveness” forced on you by a rogue employer like this.
I also think you still don’t get why accusations of “syndicalism” are misplaced here — and really just a way of dodging an argument about what the really existing state will and will not do, and under what circumstances. There’s a strong element of wishful thinking about the way you deal with the state, even less realistic when you look at what has gone on the last few days.
When you talk about a “creative political strategy” (@ 75) you again imply this is in a separate sphere to the industrial. My contention is that the Left should work towards fusing these spheres, because any “creative political strategy” from within the state and in the greater interest of workers is very unlikely to emerge without significant political industrial pressure from below. As happened after the O’Shea dispute.
I agree we are not in the same situation as 1969, far from it. But isn’t that a problem we should address rather than hide behind legislative hopes? We have every reason to fear — looking at Europe and the US — that when the economic crisis hits harder here we will face the same kinds of attacks, and most of them directed by governments of various political persuasions. If we do not start to rebuild some clarity about popular and working class resistance to such actions, then how are we to respond to such a situation?
It is in this spirit that I said the unions should think about “breaking” the Act. It is simply obvious that in a period of worsening economic crisis and competition that employers will use the current Act to get the state to hem in workers’ resistance, if that is an option before them. Because there is no realistic hope of Gillard simply amending the Act to favour workers much more unless pressured, what other strategy would you expect me to advocate? Calling it “syndicalism” allows you to avoid dealing with a very real question that is playing itself out with such ugliness and brutality in countries similar to our own.
The termination v suspension debate in this particular battle (an early battle in a longer war) actually stifles self-activity from below, which you have nowhere tried to deny. Maybe if you suggested different industrial options for the Qantas workers here (as I have suggested that Gillard could have taken different action within the terms of the Act to at least provide breathing space for the workers’ own struggle) your case would read less like an uncritical defence of an objectively pro-employer action by the government.
Calling it a “sideshow” may hold some weight when viewing politics from a purely parliamentary perspective, but it was central to both Joyce’s strategy and the unions’, and the Tribunal’s (which took several hours of witnesses and statements on just that issue, having already determined that the harms to the economy justified a ruling).
Finally, I really hope nobody thought (even for a moment) that Adam and I hold the same views on IR policy. I was endorsing his general argument about Gillard’s role in this dispute (and the Fair Work Act), and I think the points he made about arbitration limiting the allowable matters in respect to job security stand.
John D,
This is the myth that Qantas has been working hard to perpetuate by its frequent insistence that it took legal advice and was told it had no choice but to go to a lockout to force government intervention.
It is true that a direct application to FWA by Qantas under s 424 would not have been possible — FWA said as much when it found that “[i]t is unlikely that the protected industrial action taken by the three unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries”.
Qantas could also have applied under s 423, which only requires “that the action is causing, or is threatening to cause, significant economic harm to… the employer”. This would give FWA the power to suspend or terminate the union industrial action.
However, they ran the risk that FWA would find that Qantas’s claims it was “bleeding to death” as a result of the industrial action were bogus. And unlike s 424, s 423 requires FWA to consider whether the parties were bargaining in good faith, which might also have resulted in an embarrassing finding.
Perhaps the legal advice to Qantas was that they were lying about the impact of the union protected action, and were not bargaining in good faith. Because only in those circumstances could deliberately causing a a threat to the national economy in order to enliven s 424 be described as the only option.
Bandt and the Greens have been criticising the FWA since it was drafted. Any thought that they will not criticise the operation of it when they see it lead to (what they regard as) inferior outcomes is fantasy. Moreover the implication that they shouldn’t is bizarre.
ALP supporters may perceive the Greens as ‘piling on’ the government. The flip side is that others may perceive these supporters as still regarding the ALP as owning the left and regarding any criticism of the ALP from the left as being illegitimate – hence the tired old references to Abbott and the associated mentality of ‘if yer not with us yer agin us’.
Bandt and the Greens have been plainly attacking Qantas management and explicitly acknowledging that the FWA is an improvement from WC. The suggestion that they are “ascribing all evil to Gillard” in this situation is highly selective attention at best.
And yet Alex can calmly describe Gillards electoral interests in “avoiding bad headlines” with what seems to be no hint of criticism. It is apparently perfectly fine for Gillard to be concerned about her re-electability whereas Bandt putatively thinking about his is a sign of deep insincerity – notwithstanding the fact that he has been talking and writing about this exact issue for years.
the law she drafted
Well, the law that was drafted when Gillard was the responsible minister. I’ll bet she hasn’t even read it.
“For mine, the real question for the government now, having tipped the scales in Qantas’ favour, is whether they have a plan for stopping Joyce from offshoring parts of the airline. Or indeed a plan for the future of Qantas at all.”
Well, I understand there’s an amendment to the sale of QANTAS Act proposed by both Xenophon and GRNs that would prevent offshoring of wholly owned subisdiaries – if it gets govt support.
I’m still amazed anyone is taking the “comeptition presssure /profitability concerns’ crap from QANTAS seriously. There’s more than ample evident that they artifically burdening it with it and transferring protiable routes to jetstar – solely to create this impression.
Stop taking that rubbish seriously folks! Its a 3 cardtrick.
@Martin 87 – I’m “calmly describing” both Adam Bandt’s (and the Greens Party’s) political calculations in criticising Gillard and FWA rather than the actual perpetrator of the injustice (Alan Joyce) — and also describing my view that Gillard’s calculation was not to support Qantas but to try to kill a toxic political issue.
They’re just observations. You’re the one who doesn’t seem to like any connotations of political opportunism from Adam Bandt, and ascribe negative overtones when its linked to Gillard.
I’m fine with Greens Party politicians acting like politicians. It is a bit pathetic to see the legion of their bourgeois liberalist supporters leap to their defence and insist Bandt, Brown, etc are as pure as the driven snow and utterly sincere in everything they do and say (while of course Gillard et al are loathsome class traitors with no scruples about selling out the working class to corporate pirates).
I thought Mark’s post was very interesting, and the bit that particularly interested me was his discussion about why Bandt decided to criticise the Fair Work Act and try to tie it to Gillard (Bandt isn’t the only IR expert in Parliament after all), rather than focus on Alan Joyce and his union-hating Chairman Leigh Clifford — who are after all, the real villains of all of this.
@ Lefty E 89 – I think you’re absolutely correct. Alan Joyce’s goal is to gut Qantas and off-shore maintenance and cabin staffing to Asia.
What the Federal Government’s vision for Qantas (or a national carrier) should be is a very interesting question. Is Australia capable (politically) of having a national carrier like Emirates (etc), nationally owned or subsidised? Would any government want to “own” every problem associated with owning an airline (mechanical errors, cancellations, industrial disputes, etc)?
Alex, my reading about the issue suggests that the ultimate perpetrator of the injustice is not so much Joyce as the Chair of the Qantas board, who was previously the head honcho of Rio Tinto and chief driver of its anti-union strategy.
Alex, I posted too soon @92. I’ve since read your reference to Leigh Clifford’s role further up the thread.
Yes Lefty E is correct, and anyone falling for this particular corporate con act should have a hard look in the hall of mirrors, as Roy and HG used to say.
It’s a measure of how far political ‘debate’ has descended in this country that very question of re-nationalising Qantas is strictly taboo.
Robert @85: Section 423 talks about “significant economic harm” what ever that means. Pre-lockout it is debatable whether the level of harm being suffered as a consequence of the strikes was great enough to meet the 423 definition even though the threat of strikes would have been influencing people to fly with someone other than Qantas or not at all. The strikes would also have had some effect on profits on the days when they took place with planes not flying even though most staff would still have been paid. So I think it is fair to say that the FWA doesn’t offer a circuit breaker for a company suffering low level damage by a thousand cuts.
Equally, very few employees are in a position where going on strike cause enough damage to apply much pressure on an employer. I used to say that mining truck drivers were well paid because production stopped as soon as they stopped driving. By contrast, mine process engineers were relatively poorly paid compared to truck drivers because production would have kept rolling on if they were silly enough to go on strike. Look at most jobs. It would take a long time to have much effect on the bottom line. Once again, the FWA offers no relief to workers who are being fobbed off because they are unable to do enough to the bottom line to trigger section 423.
My comments were based more on my mining industry IR experience rather than this dispute. I was last directly involved in industrial relations in 1993. However, back then both employers and unions did have ready access to the arbitration commission when they thought it was necessary and unions had a lot more power.
I have explicitly made the point that the ‘criticism’ applies to all and I haven’t made a single comment that is asymmetrical on the issue so I have no idea what you are referring to. Perhaps you can point to it? However if you think you are being symmetrical in your application of the accusation of political pragmatism then you need to try harder.
But the mere fact that you have to label Bandt supporters as ‘liberalist’ (presumably Tad is now a bourgeoise syndicalist) suggests what I said earlier – some ALP supporters cannot accept criticism from the left as legitimate.
And still neither of you will acknowledge either that Bandt (and others) have been criticising the FWA for years or that the Greens have made strong public criticism of Joyce, Clifford and the rest of Qantas management. No doubt the Greens are seeing this issue through a particular political lens. But they surely aren’t the only ones.
Interestingly, Bandt’s statement does not mention Gillard once. Unlike some, he hasn’t personalised this issue.
Martin B @ 97
That’s “petit bourgeois syndicalist” to you, thanks very much.
Maybe ‘bourgeois adventurist’ would have been more apt!
I have just received a pro forma Greens press release:
- NOT FOR RELEASE TO THE PUBLIC-
The ALP….[insert issue]….in a breathtaking example of betrayal, political cowardice, cynical politics [best just to pick one] has once again let down workers, the environment, progressive politics, sunshine.
REMEMBER: never give away that we are a political party like all others. In particular, never let slip that the Greens’ main electoral strategy is to detach as much of the left-wing ALP vote as possible. Always remember that some left-wingers are sitting ducks for this sweetness-and-light routine.
…I forgot the Dalai Lama, the ALP probably let him down, too.
Ginja –
In the context of this discussion that is simple trolling. This discussion is not supposed to be about Greens v ALP but about the reasonableness or otherwise of Bandt’s responses to FWA.
If you want to re-run that one, you should do it on an open thread, IMO.
“But the mere fact that you have to label Bandt supporters as ‘liberalist’ (presumably Tad is now a bourgeoise syndicalist) suggests what I said earlier – some ALP supporters cannot accept criticism from the left as legitimate.”
Assuming that you’re talking about me, I have on record numerous criticisms of Labor from a left position.
I’m happy for the Greens Party to criticise the ALP. I just note that they do so far more than they criticise the Liberals. What’s more, they and their supporters seem to be under the delusion that their shit doesn’t stink and they are not a political party like all the others.
Hi Fran — good point. I’ll withdraw, as I’ve made my point re: Qantas and Bandt.
Alex White… Despite your occasional mock horror at the actions of labor, I know what your are… A labor hack and sycophant.. You’re on record with your apologetics, even regarding the Labor party’s decision to deliver us all Steve Fielding… Best for all that you just hush now
So I think it is fair to say that the FWA doesn’t offer a circuit breaker for a company suffering low level damage by a thousand cuts.
Why should there be a circuit breaker if the damage is low level? That’s the whole point of IR since 1993: to encourage enterprise bargaining unless the situation has reached the point where significant damage is occurring.
@107 – good to see when you can’t play the ball, you play the man. Saying that I’ve apologised for Steve Fielding is a slur. I did not agree with the decision to preference him in 2004 and I support Labor giving its senate preferences to the Greens Party (as it did in 2007 and 2010).
Well this thread has gone way past the point where Mark said he was going to start deleting comments, hasn’t it?
Alex White @105: That’s just fact-free assertion. Even a cursory glance at the Greens press releases shows that they spend at least as much time attacking the Liberals, while almost every single Greens member that I’ve met has been fairly experienced in politics and is well aware of the nature of political parties. Indeed the numerous internal power struggles over preselection, policies and all kinds of other matters gives the lie to your statement.
No doubt there are some Greens voters who believe that their party operates on a purely principled basis – much like there are some ALP voters who believe that their party will always support workers, or there are some Liberal voters who believe that their party has no factions – and for various reasons it is in the Greens strategic interests to portray themselves as a party of principle (and hence in the ALPs strategic interest to mount the kinds of attacks like you have). However confusing the PR for the reality is a pretty basic error.
MartinB
Not onl;y would that be the case amongst Green voters but Greens members. I’ve been to a few SDCs now and know of no Greens who think that our tactics should be devised with a view to wedging the ALP. We are aware that they are persistently prefferring to try wedging us whenver the alternative is better policy — the procees leading to the CPRS of 2009 being the best example. We do frame policy in part so as to blunt this politicking by them.
Our policies however are entirely based on what Greens members think are good principles — and that would include policies of the Greens with which I’d sharply disagree. So far, we have even supported policies with which we have significant problems — the MRRT and the steel package in CEF for example. Despite their attacks on us as lacking in authenticity, because we don’t ‘set our clocks early’ and are not sufficiently plebeian, we’ve pushed them to respect workers rights where they have been timorous. We’ve pushed hard on refugees, because this is principled and but we note also that their current policy will hurt them politically far more than anything we could do if we really were opportunistic.
oops:
{preferring; only; process}
I’m just a softie at heart, Martin
Btw, I’m of a mind to set out why I do have qualified support for some forms of state intervention in industrial relations, but it’ll be some time coming. I may not have made my own case as best as it could be made, but, conversely, I think to suggest that I’m “siding with Gillard against the workers” is wrong and offensive.
But I think I will let the dust settle on all this, because I think a discussion about the limits of the state and also its potentials in industrial relations would be a valuable one, albeit one that might better take place outside a n obviously rather emotive context.
Robert @ 108 – its been said that the industrial action was “low level”. Perhaps that is true wrt the impact on the customers. However it was costing Qantas about 6% of its profit each week. Eg in 4 months it would have eaten through all its profit for the year, plus greatly reduced public confidence in Qantas as being reliable anyway (insurance companies were starting to say they wouldn’t cover Qantas strikes as it was no longer unforeseable). Is that really considered to be low level industrial action?
Chris, Joyce claimed ongoing industrial action was costing $15 million dollars of revenue a week.
Qantas’s annual revenue is some $13.772 billion.
Btw, that $15 million figure they arrived at was solely in ‘lost ticket sales due to customer uncertainty’.
ie. it’s purely speculative. There could be any number of reasons Qantas ticket sales are down.
Nick – yes I didn’t say it was costing them 6% of their revenue, but 6% of their profit. Their revenue may be $13 billion dollars a year but their profit for the last year was only $250 million. And has been pointed out previously the profit they make is actually quite low given the capital invested (would do better from putting their money in the bank).
I know what you said, Chris
I’m saying it’s wrong.
It’s not costing them 6% of their profit, and there’s not a chance in hell $15 million of lost revenue a week would have “eaten through all its profit for the year” in 4 months.
Ticket sales are down 5% or so. That’s it.
Nick @ 118 – ah I see what you mean. Most of their major expenses – depreciation on the planes, wages, real estate etc (fuel is an exception) would have remained the same even if revenue dropped though wouldn’t it? So much of that 15 million could well have come straight off the profit or do you think their expense would also have dropped significantly in other places?
Great, now I’m spending my first relaxing night in a while reading a bloody shareholders report! Chris, why is it I always get into arguments with you about money, and then have to go away and learn some stuff and then nearly, but not quite have to admit that I’m wrong?
Nick – Just a conspiracy on my part to get you to learn stuff and then explain to me the shortened version to save myself time