Perhaps predictably, the dispute between Qantas and unions representing its workforce is heading to arbitration, as management has refused to bargain over job security claims. The TWU is also considering a further legal challenge.
Over the last couple of weeks, a pattern in management strategy has been emerging, as it’s become clearer that employers see arbitration as a potential way of circumventing bargaining and ongoing industrial action, and of defending “management prerogative” through resisting claims which would impact on the deployment of labour and, consequently, of cost-cutting and offshoring strategies.
The most prominent sign that there’s something of a concerted push at work is the action of the Victorian Government in taking the nurses to FWA, contextualised by a leaked cabinet paper which sugggests that its ultimate aim is to seek a termination of industrial action, followed by arbitration.
However, arbitration is not available only at the instance of employers. It’s important to note that the Australian Nursing Federation sought ‘consent arbitration’ last week – which had the Victorian Government agreed, would have allowed Fair Work Australia to arbitrate on issues such as nurse-patient rations.
Similarly, Jeff Lawrence of the ACTU has implied that unions would wish to see a broadening of the matters which can be subject to arbitration considered as part of the Gillard government’s review of the Fair Work Act.
Historically, arbitration has enjoyed support from many unions because industrial power alone, particularly where workers are female, low-waged and in a weak position to bargain, cannot secure wages and conditions which might be gained through an arbitral process. There’s a residue of this in the provisions for arbitration for low-waged workers in the Fair Work Act.
Over the last decade and a half, and arguably a little longer, bargaining rather than conciliation and arbitration have been favoured by most industrial parties. What’s interesting is that it’s now obviously becoming a locus for contestation again. The irony, here, is that the proponents of workplace deregulation have long argued against the ‘intrusion of third parties’ in industrial negotiations. Clearly, management self-interest is trumping ideology.
That’s something the Gillard government needs to take into account as it considers the future shape of the Fair Work Act.
NB: Previous discussion of the Qantas dispute can be found here.
Unfortunately it reflects the sad and sorry state of Australian management practice, and their complete lack of creativity and intellect that they prefer to treat their employees as the enemy rather than as partners to achieving a mutually beneficial outcome – that is survival of the organisation, greater efficiency and, in the case of business, increased profits. These things can be achieved without offshoring, but it takes a bit more effort – but clearly its too hard for the smartest guys in the room.
That’s something the Gillard government needs to take into account as it considers the future shape of the Fair Work Act.
So what are you suggesting, Mark? Because the bosses want to use arbitration, that option should be foreclosed by amending the Act?
Without question, Qantas management thought they would get as better outcome by arbitration than bargaining. That might also be true of the Victorian Government and nurses.
But there will be times when the employers will be in the superior bargaining position and unions will be very glad to be able to go to Fair Work Australia to get it sorted.
For instance , and while this is not an Australian example, bear with me, in the US as I write there there is a lockout of professional basketball players. It has been going on for months and will soon see the cancellation of the 2011-12 NBA season. The team owners are demanding that the players take significant pay cuts. (Yes, the players make millions, and are hardly the downtrodden proletariat, but that is not the point.) The team owners will win this dispute because they are all billionaires and for them owning a basketball team is a hobby. They don’t need the games to be played. For the players, on the other hand, playing basketball is what they do for a living. The owners will simply hold out until the players capitulate. It is an extreme example of one side having all the bargaining power and the players (and their union, which is helpless and hopeless) would love an arbitration option, but it does not exist.
A weird example inapplicable to Australian work places? Yes, in its detail and extremity. But the principle employers could easily hold all the aces in some wage bargaining situations.
I’d be very wary about making big structural changes to the IR system on the basis of one or two disputes, that aren’t even finished yet.
Sam, I’m suggesting that if arbitration is to be a feature of the system, it ought to encompass the full spectrum of matters under dispute.
I’m also pointing out that arbitration can be of benefit to unions, too (depending on how it’s structured).
Are the so-called managerial prerogative issues explicitly excluded from arbitration under the Act?
Not as far as I can tell. It seems to me that the “legal experts” who are saying that FWA will not arbitrate on the job security clauses are relying on jurisprudence around WorkChoices cases. I’d have thought the intent of the Act was that all “employment matters” were within the purview of arbitration, because the Fair Work Act removes the restrictions on matters which could be subject to bargaining which were in place under WorkChoices. I think that the Qantas arbitration will be significant, and will probably also lead to Federal Court/High Court clarification.
Sam @2, any prospect of someone doing a Kerry Packer and signing on the NBA players to play in a rebel league on better contracts than what the current owners are offering?
Note also that not all “legal experts” are agreed that FWA won’t consider the job security claims:
http://www.theage.com.au/travel/travel-news/setback-for-unions-in-qantas-row-20111121-1nr1o.html#ixzz1eOBOH4W1
Paul 6, certainly not in the short term. The owners/teams own the stadiums and TV deals are all tied up.
Mark 5,7: if all the issues are on the arbitration table, then there’s no need to change the Act (in that respect, in any case.)
Mark’s point about ideological inconsistency by the employers is very well made. Of course, senior executives are not by nature ideologues; they are businessmen (and occasionally women). They just want to make money for themselves and the shareholders* in the companies they run. Whether this is done by obtaining minimum pay rises for workers, and maximum managerial prerogative for themselves, by arbitration or by bargaining is to them a trifling detail.
On the other hand, Peter Reith, who really is a true believing ideologue, has lamented the return to arbitration.
* And as someone whose super fund owns Qantas shares, I say more power to them. OK, I am partly joking.
All that’s true, Sam, and I think it’s interesting too how the true believers (ie Reith) are adding to Tony Abbott’s IR woes.
It’s mainly but not entirely Reith who is causing headaches for Abbott. There’s a backbencher (Biggs? Briggs?) who i think was a ministerial staffer in the office of one or other Howard Government Workplace Relations ministers who is also making a nuisance of himself.
Why the Liberals are choosing to play on the only turf where Labor has an electoral advantage, and the only area of policy where Gillard actually knows what she is talking about, is anyone’s guess.
Jamie Briggs – Downer’s successor in Mayo.
There’s some useful background to the Victorian nurses’ dispute in today’s Crikey:
http://www.crikey.com.au/2011/11/22/nursing-disputes-origins-in-the-savage-cuts-of-the-kennett-era/
Let it not be said that the Victorian Government cannot be generous to public sector workers. They just agreed to an outrageously high salary settlement with the cops, giving them a better deal than even the ambit claim made by the police union.
Now, however, they are threatening to send striking nurses to jail. Funny, that. Presumably prior to imprisonment the nurses will be arrested by the well-paid, and ever so grateful, police.
Of course, this is the Baillieu upper class, private school prefect personality at work — cave in to the powerful, while viciously attacking the unpowerful. (it’s only a coincidence – cough, cough – that most police are men and most nurses are women.)
If you don’t like the Baillieu brand of Liberal, you can stick with the Abbott brand of Liberal and keep your complaints to yourself.
Let’s keep this on topic, please.
I wouldn’t mind betting (not that I’m a betting man, however) that there’s a bloke lurking in the shadows somewhere named Peter Wilson (not sure if I’ve mentioned this to you before, Mark) – he’s been a right-hand man to Rieth over many years.
Mick, that brings to mind the irony of the denunciations of the “IR Club” by the neo-liberals – if anything resembles a cosy self-reinforcing cabal with both front groups (the H. R. Nicholls Society, right wing think tanks that refuse to disclose their funding, dubious “industry” associations) and strange types lurking in the shadows, it’s them.
Peter Wilson wrote a paper for this year’s the HR Nicholls Society conference, “Impact of Fair Work Act on Australian Workplaces: A Practitioner’s Perspective.”
Most of the rest of the speakers were the usual suspects including Reith and John Lloyd, the former head of the ABCC.
All their contributions are on the HRN website, and handily there’s an archive of past papers.
Quick quiz (answer at the bottom, no peeking).
Who said this at the HRN Conference in 2002?
“The Government must be highly selective about the cases where it seeks to intervene. In general, the parties to an industrial dispute should make their own arrangements, occasionally with the Commission’s assistance, but nearly always without any government involvement. ”
Answer: Tony Abbott MP.
Sam,
That is not the same Peter Wilson. This is the one I refer to (here’s the mentioned from the article, but reading in full gives better context).
“Conspiracy theories were rife in Cairns this week, but the biggest centred on the friendship between O’Day and his former NSS colleague, Peter Wilson, who joined Peter Reith’s staff eight months ago.”
http://www.cairnstransport.com.au/cairns-transport-articles/1997/9/19/why-mua-went-offshore-to-thwart-reith-and-co/
And also from the 1997 dispute in Cairns:
“Union officials have made much in the past couple of days of Mr O’Day’s links with Mr Peter Wilson, an adviser in the office of the Minister for Workplace Relations, Mr Reith.
“Mr Wilson joined Mr Reith’s staff earlier this year, but until two years ago was employed as a senior manager for NSS where his boss was Mr O’Day.”
Shadowy figures are just that – shadowy.
http://www.cairnsofficesupplies.com.au/cairns-office-supplies-articles/1997/9/17/pickets-fail-to-stop-the-java-sea/
Howard, in the usual way that one complains about being called a cancer.
And, speaking of which, an excerpt from the AFR in December 1997:
Battle plan for the docks. (NFF and Fed Govt plan to break the waterfront union).
Author WILLIAMS, PAMELA
Source Australian Financial Review ( N88 )
Date Issue 12/12/97
Page(s) 25
Howard, ask Fonzie to sort it for you, as per usual. (Sorry Mark, couldn’t resist).
Hah! QANTAS management somehow conspire make even bigger idiots of themselves:
http://www.theage.com.au/travel/travel-news/qantas-makes-hash-of-tweet-campaign-20111122-1nsa4.html
My daughter is about begin her final year of nusing at UQ,very excited and nervous. Read about th Vicdisputes and was rather concerned, massive reduc tions in RN too paient ratio, filiing the gaps witn enrolled and assistance nusers. Much cheaper diploma. Only trained.cant se that going down well. She also mentioned qld health pay rates MUCH higher.
She wants very much to practice in thr rural commumity and hoped to assist the least advatavged i wish her every sucess.
A little bragging, over the last two semesters she has managed tg deans award fo straight 7′s.am very proud
Mark @ 5: It seems to me that the “legal experts” who are saying that FWA will not arbitrate on the job security clauses are relying on jurisprudence around WorkChoices cases.
By way of background, this is what the Explanatory Memorandum to the Fair Work Act says about “matters pertaining”:
As you can see, there is scope for job security clauses to be included in the arbitrated determinations.
However, some of the union claims (the construction of a new hangar for A380 maintenance work springs to mind) are very unlikely to be approved.
Debbieanne said:
Is that really a bad thing? Nurses are taking over work which was formerly just the domain of doctors because its been evaluated that they have the skills to do the job. I don’t think it would be surprising to discover that there is also some work that university trained nurses do that enrolled nurses are able to do.
@28 – Rob, yep, I don’t think anyone thinks the claim for the hangar is going to be upheld by FWA, but I don’t think anyone thinks, either, that it’s an “employment matter”. It goes back to what I said in an earlier post – industrial law is an imperfect instrument (at best) for achieving what are essentially political objectives.