… 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.

Bernard Keane encapsulates Joyce’s strategy:

Alan Joyce’s logic is the elegant reasoning of a terrorist.

If the result of his massive disruption of the Australian transport system is the further shredding of the Qantas brand, which began under Geoff Dixon and which has accelerated rapidly under his Irish successor, and leads to further service cuts as Australians turns their back on the airline, that’s fine.

It will merely expedite his plans to offshore-by-stealth Qantas, wrecking the Australian-based operation while he sets about establishing lower-cost, more competitive foreign-based services.

To this end, a furious reaction against the airline for its act of malice toward Australian travellers is a price well worth paying; indeed, it may be part of the longer-term plan.

Joyce’s actions and motivations are almost a parody of the globalising logic that profits are all, workers, customers and any notion of public service or good nothing. And it’s in that quality of excess, in the gamble for high stakes, that his house of cards has the real potential to come tumbling down.

It shouldn’t escape notice that the Chair of the Qantas Board, Leigh Clifford, hails from Rio Tinto, a company long known for its overt deunionisation strategy. There is undoubtedly an element of union busting in all this, as well as a broader push from the more militant elements of the Australia corpocracy to smash the Fair Work Act. Peter Reith’s high profile interventions have to be seen in this context.

Hence, Qantas’ other play here, through keeping its cards close to its chest and failing to inform the government of the planned lockout (let alone passengers), was to force the government to bring the dispute before Fair Work Australia. Hence, too, Anthony Albanese’ fury.

But, as Bernard Keane also observes, there is real opportunity for the government.

There is no doubt that Qantas’ public relations offensive has failed. Essential Research found last week that 43% of respondents supported renationalisation of the airline, a large number blamed Qantas management rather than workers, and very large majorities opposed offshoring and thought Joyce’s remuneration too high.

The polling is not unambiguous, but there’s a plethora of pointers to how Joyce’s sneak attack has resonated, from a Facebook protest page which garnered almost 4000 likes in less than 24 hours, to the reaction on Twitter. The timing, coming on top of his huge pay rise on Friday, and the massive disruption and frustration caused to passengers on a Saturday afternoon, is so stupid as to beggar belief.

Joyce has exemplified the mindset of the 1% at a time when the Occupy X movement has successfully put systemic critique back on the agenda.

So, how does all this have the potential to backfire on Joyce?

First, it’s being discussed by many as the most spectacular example of management aggression since Patrick’s locked out its workers on the docks in 1998. Unlike the waterfront dispute, the impact on the public is much more palpable and much more direct.

Secondly, as Ben Schneiders correctly observes in the Sydney Morning Herald today, there is the potential for Fair Work Australia to arbitrate the dispute, a power now rarely used, and only available to the tribunal in the case of significant disruption to the national economy. The Minister, Chris Evans, could also make orders to both sides to cease industrial action, though that would be a last resort. The Fair Work Act emphasises bargaining in good faith, and it may well be that the tribunal will find that Qantas has not been. Then, there are legal questions over whether extending the lockout to employees who were not engaging in industrial action, and standing down others, is lawful.

Given that Qantas is seeking to put FWA on trial, and that the legislation is so closely identified with Julia Gillard, the arguments put by the Commonwealth will repay close watching. It would also be surprising if there were not pressure to tighten the provisions whereby management (unlike unions) does not have to give genuine notice of its intent to pursue industrial action. Qantas’ actions in grounding its fleet immediately, and alleging that the lockout would not begin on Monday, are specious in the extreme.

It’s crucial to remember that Joyce, far from pulling his fleet from the sky as a “response to union action”, has himself, according to the legal definition, taken industrial action.

More broadly, as Schneiders comments, there may be momentum for a broader use of the arbitration power, to protect the public interest.

Thirdly, Qantas faces some pointed questioning over its obligations under the Qantas Act which enabled privatisation. There are specific provisions, reflected in the airline’s own constitution, which require it to maintain its operations in Australia, and restrict it from flying internationally under another name. The unions have corresponded with Qantas about this, and the management line has been that subsidiaries are not bound. But Senate hearings have been examining legislation introduced by Nick Xenophon and Greens Leader Bob Brown which would close off this option. If such amendments were to be supported by the government, we would be in a very interesting place indeed.

And finally, as Bernard Keane writes:

Voters, it seems, just want their old Qantas back. In the view of Joyce and the Qantas board, they can’t get it back in the airline’s current form, not given continuing strong competition from government-subsidised foreign airlines and the high dollar. The only way to get the old Qantas back may indeed be to nationalise it and subsidise it, or to return to the days when competition from foreign airlines was even more tightly restricted than it is now.

And no one in federal politics is pushing those options. Well, not yet.

In a climate when the recklessness and contempt of corporate power reveals its naked face, the government would have little to lose, and much to gain, from reining it in. We shall see.

Alan Joyce is being crazy brave. So, too, should Julia Gillard be.

NB: To keep comments focused, please leave your response on Helen’s open thread. Comments on this post are closed.

Update: Laura Tingle.

From an economic point of view, this was counterproductive; the whole point of the CPRS (which Julia Gillard was bold enough to explicitly state in Question Time last week, something Grog noted with enthusiasm) is to increase the cost of activities that emit greenhouse gases.

As many others have noted, a carbon tax is likely to only have an extremely modest impact on the price of petrol – about 0.23 cents per litre, for dollar per tonne CO2e that the tax is set at. A $25 per tonne carbon tax would be around 6c/l. But it’s likely that any rise in the price of petrol that happens in the first few months of operation will be blamed on the government, regardless of the actual source of the rise.

Bob Brown was on Meet The Press denying claims that the Greens were insisting that the rise go “uncompensated” (by which it is presumably meant that the compensation is in the form of general income tax and benefit adjustments, rather than petrol-specific measures):

PAUL BONGIORNO: There’s discussion in the papers this morning that the Greens would insist that transport, that petrol be kept in, and there is now talk that maybe the Gillard government will offset some of that pain. Are the Greens sympathetic to compensation for any carbon tax that is introduced?

SENATOR BOB BROWN: Well, absolutely. Our job is to ensure that the average Australian householder and car user is not punished by a carbon price. The idea here is to make the polluters pay. The big corporate polluters, who are threatening this country’s economy and jobs with dangerous climate change…

Petrol-specific compensation is a political fix, pure and simple. The fairest and simplest way to compensate for rising petrol prices is the same way we’re compensating for every other CPRS-induced price rise – an adjustment to income tax and welfare benefit rates. But if a political fix on petrol prices necessary, it’d be nice if it was done in a way that didn’t damage the overall long-term intent of the scheme. So here’s my modest proposal – a one-off cut to the petrol excise exactly equivalent to the initial level of the CPRS. So, if the initial carbon price was $25, which works out to 6c/l of fuel, the excise gets dropped by 6c.

This might sound similar to the CPRS’s fix on petrol, but there’s one key difference; the CPRS proposed to match the excise cuts with the carbon price as it rose; this proposal doesn’t.

This idea is based on several observations:

• The government is most likely concerned about a one-time hit to petrol prices when the carbon price is introduced.

• The effect of the modest initial carbon price on the transport sector will be very small anyway – the stationary energy sector will almost certainly clean up first unless Peak Oil cleans up transport for us.
• To clean up the transport sector with a carbon price, it will have to go a lot higher than anything mooted in the short term; my guess is well over $100 per tonne CO2e.
• As such, from a policy perspective what matters is that the transport sector is affected by the rising carbon price in the longer term.
• With this policy, there would be no price impact when the scheme is launched, so no matter how hard Tony Abbott squealed, he couldn’t blame any coincidental rise in the petrol price on the government.
• But as the carbon price goes up bit by bit, year by year, it will imperceptibly start to bite, so in 2020 or so that pluggable hybrid or EV starts to look like a good financial bet.

What do you think?

Greens leader Bob Brown has accused The Australian of trying to wreck the alliance between the Greens and Labor. We wear Senator Brown’s criticism with pride. We believe he and his Green colleagues are hypocrites; that they are bad for the nation; and that they should be destroyed at the ballot box. The Greens voted against Mr Rudd’s emissions trading scheme because they wanted a tougher regime, then used the lack of action on climate change to damage Labor at the election. Their flakey economics should have no place in the national debate.

Something to file away any time you read anything from the Murdoch press on the topic.

Also, Mr Rabbit has a sad.

Two points you may not read elsewhere:

(a) It’s not at all unexpected that Adam Bandt would side with Labor – it was an explicit promise to his electorate of Melbourne, which had it not been made, may well have dissuaded many former Labor voters from coming across to The Greens. Bob Brown has done well to press for something substantive on the back of a negotiating position where there was never a prospect of Bandt agreeing to support a Rabbit government.

(b) All the “OMG! Labor will be destroyed in the regions and the burbs!” stories ignore the fact that the ALP lost far more votes to The Greens in this election (particularly in Queensland) than to the Coalition. It’s eminently rational to send a signal to those voters that Labor and The Greens are able to lay the foundations for a progressive alliance.

In any case, the balance of power in the Senate was always going to lie with The Greens even had Labor been able to put together a majority of House seats in its own right.

How all this plays out in the longer term is another question – in that The Greens will certainly be looking to increase their presence in the House of Representatives, where Batman and Grayndler are now also Labor/Greens contests on the 2PP. But, in the short and media term, there’s little room for doubting that this agreement is smart politics for both Julia Gillard and Bob Brown.

That seems odd, doesn’t it?

In mid-July, not so long before the election was called, I spent a few days on holiday in Toowoomba, at a B&B catering for the “weary urbanite”. My partner and I weren’t the only urban visitors to the Garden City that week, though: Bob Brown and Greens Senate candidate Larissa Waters were also in town.

Brown and Waters were out and about on the Darling Downs to highlight the hot issue of coal seam gas mining and exploration on farm land. That issue later got even hotter, when an experimental coal seam gasification plant near Kingaroy was shut down, after groundwater was found to be contaminated.

The Greens’ tour of the Downs was favourably covered by local media, and attracted lots of favourable comment.

In an interesting post published last night, long time political observer Richard Farmer debunked the claim that The Greens’ support always goes backwards from the polls to election day, and speculated on the distribution of their increased vote in inner-urban areas.

But on a host of issues, including development and mining exploration but also “food security”, The Greens have been preparing the ground to reap a rural and regional harvest, particularly in Queensland and New South Wales. So their vote in the regions, which would help their Senate chances measurably in both states, will also be worth watching.

And the alliance between Green urbanites and farmers might also place a few stereotypes under the spotlight.

Cross-posted at The Drumroll.

Elsewhere: Tim Dunlop.

He draws on data from a survey conducted by Sydney University political science PhD student Stewart Jackson presented at the 2009 Australian Political Studies Association conference, and on an analysis of AES data by Macquarie University sociologist Ben Spies-Butcher. “Labor-Greens swingers” include many who were strong Labor identifiers and they have views on economic questions further to the left of existing Greens voters. Conversely, Tietze argues that Jackson’s survey, which contrasted attitudes between Greens members who’d joined prior to and after 2000, suggests a shift to a more party centred rather than social movement picture of the tasks of The Greens. I was surprised to see that Jackson found that 14% of the latter identified as ‘right wing’. 52% of the recent members disagreed with a proposition that their party should move leftwards.

Tietze is clearly one of those Greens activists who would agree with that statement.

What he’s unsure about is whether The Greens in toto are in fact a social democratic party, and his use of the data suggests that party members are less to the left than many of its supporters. He also sees a gap in the party’s ideology:

In their book The Greens, the most complete statement of Australian Greens ideology to date, Bob Brown and Peter Singer develop a compelling description of ecological and social crisis. These crises are caused, they argue, by a flawed value system – so, for example, out-of-control consumption and waste needs to be tackled by a new ‘Green ethics’. Despite radical language that attacks many aspects of neoliberalism, Brown and Singer make no recourse to systemic structural analysis. Even the greed of the rich is painted as individually irrational and shaped largely by incorrect ideas.

The conceptual absence of class or social constestation beyond descriptions of injustice and irrationality results in a curious silence about issues of power. Because Brown and Singer see Green ethics as universally applicable, they implicitly expect that the state will implement the radical reforms they propose. The corruption of past radicals in the ALP is portrayed as a matter of individuals being bought off, professionalised and shielded from accountability and not as a result of the inherently conservatising nature of engagement with the capitalist state and parliamentary system.

I’d note that I’m just summarising rather than necessarily endorsing Tietze’s critique, but I’d be very interested indeed in hearing from Greens members and supporters on it.

As the climate change debate rumbles on towards a possible denouement in Copenhagen, it’s comforting that at least one of Australia’s political parties is taking the issue seriously.

You can read the whole article here.