Since the late 2011, when the industrial disputes at Qantas climaxed in the grounding of the fleet and the referral of the disputes to FWA, the outcome of those disputes have been essentially under the radar. Qantas can be said to have won the war by its strategic decision to force the disputes to arbitration by grounding the fleet, because it has been able to use arbitration to force the unions to drop some of their positions, particularly regarding broad structural and future employment issues. It seemed at the time of the grounding of the fleet that Qantas calculated that it could gain a livable deal substantially more quickly through FWA, rather than continuing in a bargaining period war of attrition with ongoing industrial action.
In doing so, it has essentially confirmed that many of the matters about which the unions were complaining were indeed matters of management prerogative and not part of a legitimate agenda for enterprise negotiation.
Even in the case of the pilots, whose industrial action was limited to occasional announcements and the wearing of red ties, the courts upheld the legitimacy of that dispute being roped in with the two disputes (aircraft engineers and baggage handlers) in featuring more serious industrial action.
The agreements with the baggage handlers and engineers, which have resulted from the arbitration process, allow Qantas to make its own decisions about future restructuring of operations. This includes the locating of work outside Australia, and restructuring of the workforce within Australia. These are matters of management prerogative, not matters to be determined by FWA or straight-jacketed by enterprise agreement terms.
Of course, most employers are not in the position to raise the stakes as dramatically as Qantas could, to persuade FWA that substantial damage is being done, or to persuade the Federal Minister to intervene. Although the Fair Work Act Review Panel recommended easier access to arbitration, the Federal Government has not yet acted on the recommendation.
There is, of course, a certain irony in some employers wishing to take advantage of FWA arbitration powers, since employer associations and industry organisations have argued long and hard to be able to deal with disputes themselves, without being forced to get the umpire's decision. Life is full of ironies, mostly turning on the imperatives of the immediate situation conflicting with a principled position.
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