TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
1
CONTENTS
ABOUT THE TWU
3
INTRODUCTION
4
COMMENTS ON THE PURPOSE OF THE REVIEW
5
INSECURE WORK & DEFINITIONS OF FLEXIBILITY
6
IMPACT OF INSECURE WORK
9
INSECURE EMPLOYMENT IN THE AVIATION SECTOR
10
& THE QANTAS GROUP STRATEGY
QANTAS CASE STUDY
13
EXECUTIVE REMUNERATION
15
ROOM FOR IMPROVEMENT
17
EMPLOYEE RIGHTS TO TAKE INDUSTRIAL ACTION
17
NOTICE OF INDUSTRIAL ACTION
18
ACCESS TO RECORDS & FINANCIAL DISCLOSURE
20
CONCLUSION
21
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
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ABOUT THE TRANSPORT WORKERS UNION OF
AUSTRALIA
The Transport Workers Union of Australia (TWU) represents over 90,000 men and women in
Australia’s aviation, road transport, freight logistics, passenger vehicles, waste management,
oil, and gas industries.
The TWU’s industrial coverage includes individuals who are either self-employed or who are
employed directly or contracted to private companies.
With over 100 years of experience representing workers in transport and related industries,
the TWU has a proud record of standing up to improve fairness and safety at work, and the
workplace rights and entitlements of transport workers and their families.
The TWU continues to be proactive in establishing efficient industry standards that improve
the lives and safety of transport workers, their families, and the general public.
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
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INTRODUCTION
The Transport Workers Union of Australia welcomes the opportunity to provide a
supplementary submission to the Review of the Fair work Act 2009.
This is a supplementary submission to that already tendered to the Review by the Transport
Workers Union (TWU) in February 2012.
As a supplementary submission, it does not deal with all of the 69 questions put in the
Department of Education, Employment and Workplace Relations’ Fair Work Act Review
Background Paper.
This submission is focused on providing broad rebuttal to many of the erroneous claims and
misleading analyses provided by certain employers, employer organizations, and other
vested interests in their published submissions to the Review.
In particular, it will make reference to submissions by the Business Council of Australia
(BCA), the Australian Industry Group (AIG), the Institute of Public Affairs (IPA), and the
Australian Road Transport Industrial Organisation (ARTIO), and Qantas.
The TWU is concerned that many of those submissions fail to provide supporting evidence
or accurate case studies to support arguments and assertions that are intended to weaken
and undermine the core principles, and stated intent, of the Fair Work Act 2009 to provide a
fair and balanced national workplace relations framework.
Transport Workers view these attempts to subvert the Fair Work Act and principles of
fairness and balance as further demonstration of a new model of extreme employer
militancy in this country.
Further to our original submission, we remain convinced that while there are areas of
potential improvement to the Fair Work Act, we believe the Act to be substantially superior
to the WorkChoices legislation it replaced – particularly in the areas of general protections
and the abolition of Australian Workplace Agreements, which has contributed to significantly
fairer workplaces and genuine choices for more workers.
The TWU notes and supports the submissions and supplementary submissions of the
Australian Council of Trade Unions, Unions NSW, and TWU state and territory branches.
This supplementary submission is made on behalf of the Transport Workers Union of
Australia, and is supported by all TWU state and territory branches.
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
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COMMENTS ON THE PURPOSE OF THE REVIEW
It is noted that the purpose and intent of the Review, as a post-implementation review, is to
consider whether the legislation is meeting its stated objectives and whether those
objectives might be achieved in a more effective and efficient way.
Unfortunately, many submissions to the Review, particularly those of the BCA, AIG, IPA, and
ARTIO – as well large employers like Qantas – continue to deny the mandate provided to
the drafters of the Act after the 2007 federal election.
It is obvious to the TWU that many of these submissions are crafted in blind pursuit of an
ideologically driven agenda, seeking to benefit vested interests and put corporate profits
and executive remuneration ahead of workers, fairness, and Australia’s national interest.
Despite the Australian people comprehensively rejecting WorkChoices in 2007 as extreme
and anathema to the national ethic of the ‘fair go’, vested interests as represented by the
BCA and AIG continue to pursue an ideologically driven agenda of employer militancy that
would slash wages, conditions, and employment security.
Their submissions essentially seek a return to the WorkChoices regime, which wildly tilted
the workplace relations system in this country in favor of employers at the expense of
ordinary hard working Australian families.
On that basis, the TWU contends that much of the evidence cited and assertions made in
those submissions could at best be considered disingenuous, when what is central to their
arguments is that the Fair Work Act ought never have been drafted.
Essentially, their ideal remains – and the yard stick by which they measure the effectiveness
of the Act - a system that would empower the employer prerogative at every level,
unfettered and unregulated by notions of fairness, equity, or the national interest.
The TWU therefore strongly endorses the position of the ACTU contained in it’s submission,
that:
“…it is clear from public statements and material already released that some
employer organisations never accepted the government’s mandate to pass the Act,
and intend to simply re-agitate positions advanced in the course of the debates
leading up to the repeal of Work Choices. Many of the recent public claims in relation
to the Act are not objections to its operation but to its objects and the framework
per se. Submissions seeking to overturn the Fair Work framework are, in our view,
clearly outside the scope of this review.1”
1 ACTU submission to Fair Work Review, 17/2/2012
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
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INSECURE WORK AND DEFINITIONS OF
FLEXIBILITY
Insecure employment is commonly defined as:

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Irregular and unpredictable working hours and locations
Uncertainty over the length of a job
Income insecurity due to variable pay patterns
Low or no leave rights
Official statistics reveal that:

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
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2.2 million workers are employed casually across Australia
One million workers are contractors; 40% of these are dependent contractors who
have no authority over their work
40% of labour hire employees work less than 35 hours a week; nearly half do not
have steady work
1.2 million workers pay varies from week-to-week
When Qantas, the Business Council of Australia and AI Group talk about “greater workplace
flexibility” the practical effect for Australian workers is insecure employment.
A common theme running through each of the submissions from Qantas, BCA, AIG, ARTIO,
and a range of other employers and employer groups is complaints about flexibility afforded
to them under the Fair Work Act 2009.
None of these reference to so-called ‘flexibility’ explains what is actually meant, but it the
TWU’s contention – and, indeed, our practical experience – that when Qantas says it wants
more flexibility, it is really saying is that it wants an unfettered and un regulated facility to
employ workers at the lowest pay, conditions, and job security that they can get away with.
This has been demonstrated by the behavior of its Jetstar and JetConnect operations and
what are effectively ‘sham contracting’ arrangements.
In relation to the assertions and claims made in the Qantas submission, Qantas
management has an appalling track record of making misleading statements about its
operations, its relationship with its workers, and the operation of the Fair Work Act as it
applies to Qantas and its wholly owned subsidiaries such as Qantas Ground Services, and
other entities.
Australian workplaces and trade unions have witnessed considerable growth in positions
that are employed casually, on rolling short-term contracts or engaged by labour hire
companies.
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
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These employees are generally paid less than equivalent direct employees, are employed for
(varying) fixed periods and have comparatively few, if any, leave entitlements.
Contrary to industry peak group and employer comments in their submission to the Review,
the majority of precariously employed individuals in these positions do not seek the kind of
“flexible” work arrangements they find themselves in.
Rather, they are increasingly frustrated with the unreliability of their positions and the
relative absence of entitlements. They have come to form a class of disposable employees,
whose rights to reliable and fair terms of engagement are ignored or frustrated.
Australian workers have long tolerated the supposition that the success or survival of the
company they provide services to is primarily linked to operating expenses. These
employees have often forfeited long-standing rights and curbed salary or related demands
according to the prevailing economic conditions.
It is also the case that salary and conditions are being eroded in order to satisfy ongoing
management demands for a so-called flexible workforce.
However, while we commonly witness restraint across general work classifications, levels of
executive remuneration have soared, even as overall company performance has fallen. A
snapshot of recent executive remuneration packages across companies the TWU seeks to
engage with reveals:
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Qantas CEO: Alan Joyce, 71% pay rise to $5 million
Toll CEO: Brian Kruger, 33% pay rise to $2.1 million
Coles Managing Director: Ian McLeod, 94% pay rise to $15.6 million
Woolworths CEO: Grant O’Brien, 23% pay rise to $2 million
The divide between employer and employee is growing wider and with it, the security of
work that most Australian workers could once expect is being progressively dispensed with.
FLEXIBILITY & PRODUCTIVITY
Many submissions from employers and employer groups use terms like “flexibility” in
relation to prodctivity, and erroneously claim that the Fair Work Act has reduced so-called
flexibility and therefore productivity.
The TWU wishes to note the detailed and well-argued initial and supplementary submissions
by the Australian Council of Trade Unions (ACTU) to the Review, and strongly endorses the
ACTU’s position regarding flexibility and productivity:
“…comment relates to the misuse of the terms ‘flexibility’ and ‘productivity’ by
employers. The employers use the term ‘productivity’ synonymously with profits
and/or production. According to the employers, productivity can be improved if
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
7
workers work longer hours, or if they forgo penalty rates and other protections.
However, in strict economic terms, productivity is the ratio of outputs to inputs.
Accordingly, an increase in working hours (with commensurate increase in output)
does not raise productivity levels, nor does a reduction in the workers’ wage and
entitlements — indeed, the latter only increases profits, at the expense of workers,
by shifting income from labour to capital.
Equally, the employers use the term ‘flexibility’ to mean the ability to avoid (or at
least opt out of) legal rules or commitments given to others. So, for employers,
exempting small business employers from unfair dismissal rules represents
‘flexibility’, as does the ability to escape commitments given to workers (including
formal commitments made in individual contracts or collective agreements) if
‘business conditions’ change. This does not accord with common understanding of
flexibility, which connotes the idea of small adjustments being made within a
framework of legal rules and agreements, where the adjustments are made with the
consent of the other parties, and on the basis of an expectation of reciprocity. This is
a ‘give and take’ form of flexibility, whereas the employer version is all ‘take’ and no
‘give’.2”
2 ACTU supplementary submission to Fair Work Review, March 2012
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
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IMPACT OF INSECURE WORK
There are several concerns arising from the shift away from secure work that would occur if
QANTAS, BCA, AIG were to successfully advance their ideological agenda of deregulation of
workplace relations:
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Negative quality of life impacts increase: time spent with family is reduced and
irregular;
Workers eager to provide for their families are pressured to accept unsatisfactory
terms;
Employees are pitted against each other on a cost basis;
Declining work quality and safety;
Downscaling of safety and occupational health training and outcomes; and
Falling service standards
Overall, the TWU is witnessing the development of an atmosphere where employees are
devalued and alienated rather than being a viable and productive part of an enterprise.
These trends invariably compromise the relevant employees’ ability to budget for
professional and living expenses and exposes them to a “take it or leave it” approach to
work allocation and entitlements.
The decline of secure work ultimately fractures the necessary good faith required between
employer and employees that ensures service quality and safety considerations are
addressed.
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012
9
INSECURE EMPLOYMENT IN THE AVIATION
SECTOR AND THE QANTAS GROUP STRATEGY
Qantas has publicly rejected employees’ demand for secure Australian jobs, and seeks to
flaunt the principles and provisions of the Fair Work Act at every available opportunity.
Qantas CEO Alan Joyce recently said:
“They (employees) are demanding a guarantee of job security, and in effect, a
veto on change… Jobs at Qantas have been historically secure. I understood
people wanted job security, but it is no more in my power to guarantee jobs in
writing than to promise that Santa will swing by December 24.” 3
Qantas Group CEO Alan Joyce
Qantas’ August 2011 strategy outlined plans to:
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Reduce the Qantas workforce by 1000+ employees;
Progressively abandon the airline’s historical flagship business, Qantas
International;
move significant aviation businesses to (as yet, undetermined) Asian destinations
and conduct its business adhering to relatively low safety and security standards
in those destinations.
Across the areas of eligible TWU membership, Qantas is seeking to massively increase the
ratio of outsourced workers to direct employees – and in recent weeks we have seen Qantas
make good on those threats to job security.
Confidential internal Qantas documents were obtained by the media in late 2011 that
recommended the outsourcing of all Qantas ground handling services by 2020. This
strategy was revealed as “part of Qantas’ longer-term strategy to reshape the airline and
lower labour costs.”4
Qantas employs 27,405 in its general aviation business, with a further 880 employees
employed in its freight arm. Jetstar now employs around 3,700 staff. Jetstar staffing
numbers are accelerating compared to its parent company.
Currently, approximately 70 per cent of Qantas employees who engage in Airports, Fleet,
Freight, Catering and Transport are employed as full-time staff by Qantas Airways (see
table). However, the number and proportion of full-time Qantas staff is in decline.
3
4
Herald Sun, April 19, 2011
‘Farming Out Was Qantas Option’, Sydney Morning Herald, Matt Wade, October 24, 2011
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 10
Despite marginal recent growth, the Qantas Group has been cutting its full-time workforce
since 2005 (as shown in the graph below5).
The number of full time equivalent employees dropped year after year, down from 35,520
(2005) to 32,490 (2010). A total number of 3030 full time jobs were cut in the past five
years – almost one tenth less than it was five years ago.
Time Line: 1=2001, 10=2010
Among workers covered by QANTAS-TWU EBA7 (which expired in 2011), who engage in
Airport, Fleet, Freight, Catering, and Transport operations with Qantas Group (including Q
Catering and fully owned Qantas subsidiary QGS):
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
Only 70% of the workers are employed on a full-time basis, as direct employees by
Qantas Airways, or by fully owned companies of Qantas Group;
Approximately 17% of the workers are employed via labour hire agencies, with lower
pay and less training than their counterparts; and
Workers employed by Qantas fully-owned subsidiary Qantas Ground Services (QGS)
mostly work full-time but receive fewer entitlements compared to full-time staff
employed directly by Qantas Airways.
Q Catering, Qantas’ catering arm, is the subject of ongoing conjecture about being sold to
private equity interests. Approximately half of all Q Catering staff are already casual.
It is evident to the Union that Qantas is ceding work traditionally performed by its main
Qantas brand to private and private equity interests. In other areas, it is systematically
substituting service delivery, including entire route services, to Jetstar.
Jetstar business practices appear to have emboldened Qantas to “cut out” discrete routes
and engage staff who present as Qantas staff in all relevant employment respects, except
they are employed under what should be classified as sham contracting arrangements.
For example, Tasman routes operated by a wholly owned Qantas subsidiary, JetConnect,
allow Qantas to pay 600 staff, including about 100 pilots, in cheaper New Zealand dollars.
5 Qantas Annual Reports F2001-2010
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 11
This means the pilots receive about 30 per cent less than their Australian counterparts, with
the remainder of the workforce paid about 40 per cent less.
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 12
QANTAS CASE STUDY
Qantas claims that the industrial action that has occurred within its operations over the past
two years is the result of changes introduced with the Fair Work Act – essentially arguing
that the action is caused by the Fair Work Act 2009 and wouldn’t be occurring if the
WorkChoices regime had remained.
The TWU strongly contests these claims, and firmly believes that Qantas management – and
the extreme model of employer militancy that has been introduced by Qantas CEO Alan
Joyce and Chairman Leigh Clifford – is the real culprit in disrupting Qantas and damaging its
brand.
Recent industrial conflicts at Qantas commenced shortly after the new senior management
team of CEO Alan Joyce and Chairman Leigh Clifford took over and instituted a new model
of conflict between management and unions, cutting corners, impacting safety, and injuring
Qantas’ brand equity.
Qantas flagged its awareness of the potential for an ideologically extreme path in April
2010, when Qantas Executive Manager Industrial Relations Sue Bussell gave a lecture at the
University of Sydney wherein she referred to political and ideological approaches in
industrial relations - paths which Ms Bussell countenanced in her speech, claimed to refute,
but which Qantas has since pursued in “advancing a particular ideological or political
perspective” 6 in industrial relations.
In her lecture Ms Bussell also cautioned against particular terms “easily bandied around
and/or used as an industrial tactic7” – precisely what Qantas is doing when it uses the terms
“flexibility” and “productivity” to prosecute its militant ideological agenda to drive down the
wages, conditions, and job security of the workers that actually keep Qantas flying.
Since around that time Qantas management, in a show of employer militancy, has
deliberately pursued an ideological path of conflict with its workers and the community –
cheered on by the likes of the BCA, AIG, and IPA.
That employer militancy undermines fairness and balance in this country, and is without
regard for the national interest – or the lives of its workers and their families, facing
increasingly precarious employment.
While no defect has been asserted in the abilities of current Qantas staff, the airline is
blithely arguing a need to increase the number of precariously employed individuals.
6 Turbulent Times – A Practitioner’s Perspective Of Industrial Relations in Aviation”, Laffer Lecture, University of Sydney, by Sue
Bussell, QANTAS Executive Manager Industrial Relations, 19 April 2010
7 Turbulent Times – A Practitioner’s Perspective Of Industrial Relations in Aviation”, Laffer Lecture, University of Sydney, by Sue
Bussell, QANTAS Executive Manager Industrial Relations, 19 April 2010
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 13
In the aviation and road transport sectors, the Australian public witnesses companies that
project themselves as reliable, cost-effective and friendly in a distinctly “Australian” way claiming to reflect the notion of a ‘fair go’.
This is a veneer, reflected in vast advertising campaigns that conceal business practices in
stark conflict with the fairness, helpfulness, and determination that make up the intangible
notion of the Australian way.
It is reasonable to say that these notions of the Australian way are central to the principles
of fairness and balance underpinning the Fair Work Act – and which Qantas and others, in
the arguments made in their submissions, are seeking to dismantle.
In each area of coverage, the TWU aims to set fair national benchmarks in negotiations with
major employers. Regional approaches are also taken by State Branches and Sub Branches,
which often focus on particular employment issues.
CASE STUDY:
Statement by Qantas Family Member - Stephanie
“My husband has been part time for over three years now. No full time
employment, that’s shameful. We have three children and I am only able to work
part time myself and studying for a Postgraduate diploma in Psychology and
Counseling.
I am forced to do that because we are unable to survive on wages my husband
brings home (around $650 per week).
I am blessed that God has given me a good mind so I can complete studies and
[improve] my employment prospects, what about those out there who are not so
fortunate and their husbands are the main breadwinners? Those men working
part time can barely afford to feed their families.
The economic difficulties are also impacting on their family structure, social
interaction with their peers and not to mention that moral is at all time low at the
Kingsford Smith International Airport. ”
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 14
EXECUTIVE REMUNERATION
While workers are witnessing increasing attempts to restrain their wages, conditions, and
job security – with employers calling for even more - levels of executive remuneration have
soared, even as overall company performance has fallen.
As a result the divide between employer and employee is growing wider and with it, the
security of work that most Australian workers could once expect is being progressively
dispensed with.
Senior Qantas executives have been the most obvious beneficiaries of the Qantas Group’s
performance, even while employers at the operational level face severe restraints.
Qantas Chairman Leigh Clifford received a greater than 50 per cent board fee increase since
2008. Richard Goodmanson received a 38% board fee rise since 2009.
Apart from contracted annual remunerations, Qantas executives also enjoy payment
packages with other short / long-term and benefits, including performance & share-based
payments. Four Qantas executives carried away almost $53 million in four years.8
Current CEO Allan Joyce: Mr Joyce’s fixed annual salary in 2011 is 384% higher than
when he joined the Group in 2005, from $532,273 to over $2 million. Mr Joyce’s current
total remuneration is $5 million (pre-vested) - 71% more than last year.
Former CEO Geoff Dixon: Mr Dixon was controversially rewarded $12.2 million when he
left the Group. In the same financial year in which the airline's profit was slashed by 88 per
cent and 1750 jobs were axed. 9
8
Qantas Annual Report 2008-2011
9 Steve Creedy, “Qantas chief left with $11m payout”, The Australian, September 22, 2009
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 15
Squeezed Employees: Qantas paid $14.4 million to eight executives in FY2011, a
combined 62% pay rise. Instead of 40:1 ratio of CEO to worker salaries in Germany10, at
Qantas the ratio is as high as 140:1.11
The contrast between remuneration for top QANTAS executives, and the workers that
actually keep the airline running are stark – and disturbing:
Figures below12 shows the percentage of Qantas Group’s manpower and staff expenditure in
its total expenditure. It revealed that:
By 2010, the percentage was 28.8%, less than ten years ago (31.6%)
10 Jack Gray, "Overpaid bosses: just call their bluff", The Australian Financial Review, 11 October 2011
11 Alan Joyce’s 2011 remuneration package compare to a full time trainee ground crew work for Qantas fully
owned company QGS.
12 Qantas Annual Reports F2001-2010
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 16
ROOM FOR IMPROVEMENT
The TWU believes the Fair Work Act 2009 to be inherently superior to the WorkChoices
legislation it replaced, because it restored a degree of balance and fairness to Australian
workplaces that was ripped away by the former govern00ment.
There remains, however, areas of potential improvements to the Act which the TWU
believes would enhance the Act to better reflect its objects of fairness and balance, and in
so doing better serve the national interest.
We note again our disappointment at the submissions by many employers and employer
representatives, which in effect argue for the subversion of the principles underpinning the
Fair Work Act and would do significant damage to the fabric of Australian society.
It is disturbing that submissions such as that from the Australian Mines and Metals
Association (AMMA) seek changes to Act that would not only go beyond the excesses of the
former WorkChoices regime, but would breach the United Nations Declaration of Human
Rights by seeking to deny Australian workers the right to freedom of association and the
right to join a union.
The TWU believes that should amendments to the Act be contemplated by the Australian
Government, then there are some key areas for improvement. TWU also notes, and
endorses for debate, the suggested changes to the Act contained within the ACTU’s initial
submission.
Unlike many employer submissions, which seek to undermine fairness, balance, and equity –
with scant regard for the national interest – the TWU’s suggested changes for consideration
seek to grow a fairer, more prosperous economy for all Australians.
EMPLOYEE RIGHTS TO PROTECTED INDUSTRIAL ACTION
Among the objects of the Fair Work Act 2009 is included a reference to Australia’s
international labour treaty obligations, and the conventions of the International Labour
Organisation (ILO).
Both the ILO and the United Nations (UN) recognise the rights of workers to freedom of
expression and association (Articles 19 and 20), and Article 23 of the Universal Declaration
of Human Rights that states:
“Everyone has the right to form and to join trade unions for the protection of his
interests.”
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 17
A key element of that right worker to join a union and to participate in the organization of
his or her labour, is the right of that worker to withdraw their labour and take other forms
of industrial action.
The TWU is concerned that the Fair Work Acts provisions which serve to limit the
circumstances in which an employee may withdraw their labour in pursuit of workplace
outcomes, represents a contravention of ILO obligations, and tips the balance too strongly
in favour of employers.
As Dr Shae McCrystal of the Univerity of Sydney Law School notes:
“Employers are free, within the limits of the law, to use the tools of incorporation,
hiring, firing and managerial prerogative to control their side of the bargaining
equation, so workers equally must be free to utilise the tools of collective bargaining
and collective withdrawal of labour to achieve their objectives.13”
On that basis, when employers have vastly greater capacity to bargain through the
economic and other mechanisms available to them, the TWU believes it is only reasonable
that Australian workers are accorded the right to withdraw their labour and take other
action in support of claims that can further their workplace and economic interests.
The Fair Work Act only allows workers to engage in protected industrial action to support
negotiations aimed at establishing single enterprise agreements14, and along with
Competition and Consumer Act (and the Trade Practices Act that preceded it), limits the
ability for Australian workers to engage in industrial actions in support of their broader
socio-economic interests, other employees, and against employers or organisations who
have a direct or indirect say in their working conditions15.
The TWU therefore supports the statement by the ACTU, in its submission to the Review,
that:
“These limitations on the right to strike in support of legitimate bargaining claims
cannot be justified. They contravene international law and ILO rules and violate the
fundamental human rights of workers to strike. As such, they are inconsistent with
section 3(a) of the Act, which expresses an intention to comply with international
law. They should be significantly modified or removed.”
The TWU believes that restrictions within the Fair Work Act that limit the level and scope at
which employees can take industrial action, effectively limits workers’ freedom of association
and organizing that is recognised by ILO Conventions – and ought to be changed in order to
allow workers the right to engage in protected industrial action outside of bargaining
periods.
McCrystal, Shae. Legal Studies Research Paper No. 10/18 The Fair Work At 2009 (Cth) and the Right to Strike.,
University of Sydney, February 2010.
14 s413(2) Fair Work Act 2009
15 McCrystal, Shae. Legal Studies Research Paper No. 10/18 The Fair Work At 2009 (Cth) and the Right to Strike.,
University of Sydney, February 2010.
13
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 18
NOTICE OF INDUSTRIAL ACTION
The TWU’s initial submission noted concerns about the operations of the Fair Work Act that
might provide - and in the unfortunate case for JJ Richards employees actually has provided
- the capacity for employers to engage in employer militancy in pursuit of ideological
arguments at their employee’s significant expense.
Of particular concern to the TWU is the stark imbalance and lack of fairness contained in
section 414 of the Act, which requires that employees and unions intending to take
employee claim industrial action must provide the employer with at least three full days
notice of the action to be taken.
As was demonstrated in recent industrial disputes with Qantas, the Act does not place that
same requirement on employers, with the effect of allowing employers to take snap
industrial action and manipulate the industrial relations framework to gain advantage over
their employees.
The consequence of this imbalance is significant not just for workers but also the national
economy, and were demonstrated by QANTAS management’s decision in October 2011 to
take snap industrial action, bullying its employees, the community, and threatening the
national economy. The full bench of Fair Work Australia found that:
“It 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.
The response industrial action of which Qantas has given notice, if taken, threatens
to cause significant damage to the tourism and air transport industries and indirectly
to industry generally because of the effect on consumers of air passenger and cargo
services.16”
The TWU has previously submitted that the Act should be amended to correct this
imbalance, and ensure that employees are treated fairly, and that egregious actions such as
those of Qantas management in October 2011 are not able to occur in future.
As well, the TWU completely rejects Qantas’ assertion that the removal of the mandatory
minimum four-hour minimum deduction of pay for protected industrial action has
significantly changed the balance17.
It is ludicrous and hypocritical of Qantas to claim that the removal of that provision, in the
absence of any requirement on the employer to provide notice of employer industrial action,
tips the balance against employers.
Qantas claims:
“Likewise in service based industries bans that do not involve stoppages can also be
very damaging to the business without any real countervailing consequence”18
See FWA Decision B2011/3816 under s424 of the Fair Work Act 2009
p. 6 Qantas Group submission to Fair Work Review Feb 2012
18 p. 6 Qantas Group submission to Fair Work Review Feb 2012
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 19
16
17
That claim by Qantas is highly hypocritical in view of its actions in October of 2011, which
caused far great financial and reputational damage to Qantas than any action engaged in by
its employees.
Qantas goes on to claim that the ability for employees to withdraw industrial action placed
unreasonable operational difficulties on Qantas, and caused disproportionate disruption to
services:
“Taking Qantas as an example, a one hour stoppage by engineers, ramp employees,
pilots, cabin crew or customer service staff has a direct and significant impact on
operations, schedules and customers, requiring adjustment to schedules and often
causing ‘knock on‘ delays throughout the network that extend well beyond the
period of the stoppage. In short, the impact on the employer and on customers is
out of all proportion to the one hour deduction from pay that would occur under the
current rules.”
That statement appears to be a direct contradiction of evidence that Qantas CEO Alan Joyce
gave before the Australian Senate and presented to the Australian media about his
grounding of Qantas in October 2011 – wherein he clamed that Qantas was able to ground
the entire Qantas fleet worldwide at a (claimed) couple of hours notice.
In that context, to claim that a one-hour stoppage by has a direct and significant impact on
“a direct and significant impact on operations, schedules and customers19” is ridiculous
when Qantas is able to lock-out employees with no notice whatsoever.
GOOD FAITH BARGAINING – FINANCIAL DISCLOSURE & ACCESS TO RECORDS
The TWU notes the submission by the Australian and International Pilots Association (AIPA),
and endorses its recommendation that:
“…subsection 228(1)(c) of the Fair Work Act be amended to provide an effective way
for bargaining representatives of employees to have access to an employer’s
financial information (subject of course to confidentiality). The Act should make it
compulsory for an employer to provide such information (including the data from
which the information was derived) to the bargaining representatives, especially
where the employer has relied upon and made representations to its employees
about its financial position as part of negotiations for a new enterprise agreement.
This would go a long way towards promoting fair and open negotiations between the
parties and the object of the Fair Work Act.”
As noted in our initial submission, the requirement in section 228(b) of the Act to disclose
relevant information is of potential utility to both employers and employees is
This requirement would potentially resolve deadlocks between employers and employees,
particularly in circumstances where employers are or claim to be unable to meet claims for
specific economic reasons.
19
p. 6 Qantas Group submission to Fair Work Review Feb 2012
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 20
Unfortunately the utility of s228(b) is substantially erased by the qualification that the
“confidential or commercially sensitive” information need not be disclosed. In practice there
is little information which could not be subject to an arguable claim that it is confidential or
commercially sensitive.
This difficulty is exacerbated by the fact that the meaning of the phrase “confidential or
commercially sensitive” is ambiguous.
Section 228 should be amended to clarify and confine so it cannot be used to get around
the obligation to disclose.
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 21
CONCLUSION
The TWU remains convinced that the Fair Work Act 2009 is a significant improvement over
the inequitable and harsh WorkChoices legislation it replaced, and has demonstrated its
capacity to better ensure fairness and provide employees with protections and rights in the
workplaces.
As a post-implementation exercise, the Review is a good opportunity to assess the impacts
of the Act against its stated objectives.
Unfortunately, many any of the submissions made by employers and employer groups have
failed to provide supporting evidence or accurate case studies to support their assertions
and arguments.
It is the TWU’s concern that those arguments are intended to weaken and undermine the
core principles of fairness and a balance that underpin the Fair Work Act 2009, and presents
a further demonstration of a new model of extreme employer militancy in this country.
The submissions made to the Review by many employers and employer groups have served
to reinforce the TWU’s view that any changes to the Act must serve to strengthen employee
rights and limit the ability of employers like QANTAS-Jetstar, and commercial bullies such as
Coles and other major retailers, to hold the Australian public, our national economy, and
notions of fairness and equity to ransom.
The TWU is under no illusions as to what many of those submissions represent – a full-scale
assault and long running agenda to drive down the wages, conditions, and job security of
hard working Australians.
Employers like Qantas are bent on driving Australians’ wages and conditions as low as they
can – with scant regard for Australian notions of fairness and decency at work – or the longterm damage they may do to the fabric of Australian society.
TWU Supplementary Submission to Review of Fair Work Act 2009 – March 2012 22