Qantas’ unprecedented decision to ground its entire fleet of aeroplanes during a recent industrial dispute has provoked huge debate across both the country and the world.
The clash, the response of the Australian national airline’s management to it and the subsequent decision of national workplace relations tribunal, Fair Work Australia, to order an end to the wrangling also made global headlines.
We explore the background to the dispute, the means by which it was resolved and how such an approach might translate into UK practice as the country braces itself for a national ‘day of action’ by public sector workers on Wednesday 30 November over proposed Government pension changes.
Background to the dispute
The Qantas dispute followed a number of restructuring and outsourcing proposals that were announced in August 2010 and inferred that about 1,000 of its 35,000 strong workforce could lose their jobs.
In response to the proposed changes, employees from across the company staged a series of strikes and other industrial action. This meant that the airline was unable to guarantee that any of its services would run to schedule.
In a move that sparked outrage across Australia and the world, Alan Joyce, Qantas’ chief executive, chose to respond by grounding his entire fleet of ‘planes. This led to flight cancellations in 22 countries, affecting 70,000 travelling customers, which apparently included UK Foreign Secretary, William Hague, and US rock band, Kings of Leon.
Joyce described it as a “bold decision, an unbelievable decision, a very hard decision”, arguing that he had been forced into it in order to combat passenger uncertainty. His reasoning was that he could not allow a situation to continue in which the airline could not guarantee that its ‘planes would actually take off.
The Australian Prime Minister, Julia Gillard, called the decision “extreme”, while the Transport Minister expressed shock and disappointment at the move. Ultimately, the Government responded by ordering Fair Work Australia, the country’s equivalent of the UK’s employment tribunal system, to intervene.
The result was a 12-hour hearing on Monday 31 October, after which both parties were ordered to halt all industrial action and resume flight activity. They were also given 21 days in which to continue negotiations, with a view to resolving the dispute.
The FWA decision
Under the Fair Work Act 2009, the FWA is entitled to exercise a number of powers in respect to national employment relations and employee rights. For example, it rules on unfair dismissal claims and is responsible for ensuring workplace health and safety obligations are complied with. It is also involved in monitoring pay and setting the minimum wage.
In relation to industrial disputes, the body has the power, in certain circumstances, to suspend or terminate protected (authorised) industrial action and to stop or prevent unprotected (unauthorised) industrial action. The right to suspend or terminate industrial action arises if the FWA is satisfied that it threatens to endanger public safety or “cause significant damage to the Australian economy or an important part of it”.
On 31 October, the organisation heard evidence that the Australian tourism industry accounted for 2.6% of GDP, with the value of inbound tourism being estimated at $AUS 24 billion per year. The FWA held that, while the union’s industrial action was unlikely to cause significant damage to tourism, the lock-out imposed by Qantas’ management would.
As a result, it came to the conclusion that terminating industrial action was appropriate in order to enable further negotiations to take place. These talks were scheduled to last for an initial 21-day period, but could be extended for a further 21 days, after which time the FWA could impose binding arbitration. It is understood that talks are still ongoing.
Applying the Australian approach to the UK
In the UK, by way of contrast, the only way to force a strike to end via the courts is to commence litigation with a view to obtaining an urgent injunction in order to prevent or discontinue the action.
This route is usually taken by the employer concerned, but affected consumers can also seek injunctive relief if they believe that industrial action could prevent or delay a supply of goods or services or reduce the quality of those goods or services.
Because it is an extremely expensive option, however, willingness to go down this route depends on each employer’s (or consumer claimant’s) resources and sources of funding – fact that could mean public sector employers would be less willing to engage in the process than private sector equivalents.
Possible grounds on which to seek injunctions that have hit headlines lately include finding flaws in the complex balloting procedures set out in the Trade Union and Labour Relations (Consolidation) Act 1992. Recent judicial decisions in this area have suggested that TULCRA’s strict provisions may not be interpreted quite so narrowly in the future, however.
So with this in mind, what has the UK got to learn from the Australian FWA model? And would similar powers be workable or even welcome here?
In other words, could (or should) the UK courts assume a more interventionist role during industrial action in circumstances where there is a serious threat to public safety or the UK economy? Bearing in mind that the FWA’s intervention was at the behest of the Australian Government, how would that sit within the country’s industrial relations and political culture?
Certainly the unions would object and would, undoubtedly, point to the European Convention of Human Right – specifically Article 11, which enshrines the right to freedom of assembly – and other similar legislation to support their arguments.
This rationale would inevitably centre on concerns that, if judicial power was used to suspend or terminate authorised industrial action because of the effect it was having, or could have, on the economy or public safety, it would result in workers’ rights being restricted.
Limited options
There would also be valid arguments to suggest that such state intervention was unconstitutional and represented a further encroachment by the state into the rights of citizens.
On the other hand, the Government, managerial representatives and some parts of the general public, would likely be in favour of such a move. Applying the concept to the impending public sector ‘day of action’ on 30 November, if such a power were available today, the Government would undoubtedly seek to use it to stop at least some professions striking.
If teachers, for example, walk out, it will inevitably damage the economy as millions of parents will be forced to take time off work or pay for childcare. If nurses strike, there will likely be the same fears around public safety as there were when fire crews took industrial action in 2002/03.
It is, therefore, quite possible that Prime Minister David Cameron turned green with envy when he read news of the FWA’s decision.
Ultimately, however, unless persuasive arguments are advanced to prove that changes of this type would not contravene “the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests” set out in ECHR Article 11(1), the UK will struggle to adopt the Australian approach.
The derogation in Article 11(2) (“No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety…”) might go some way to justifying the interventionist approach, at least where public safety is an issue, however.
But whether these arguments end up being made and whether the Australian approach is explored any further by the UK Government remains to be seen. As it stands, its options for stopping the day of action on 30 November are limited – although there has been talk of a legal challenge based on the argument that the dispute is political in nature rather than being “in contemplation or furtherance of a trade dispute” as required by TULRCA.
To this end, it is understood that the Government is looking closely at the rhetoric being used by the unions and is taking legal advice in order to evaluate whether such a challenge would be likely to succeed. In the meantime, it has launched a PR campaign to persuade the public that its improved pensions offer is reasonable and should be accepted, in an attempt to turn the tide of public support away from striking public sector workers.
Jack Fletcher is a solicitor; Thomas Bourne, an associate, and Karen Plumbley-Jones, a practice development lawyer at law firm, Bond Pearce LLP.
