IR lawyers warn Qantas: Don’t count on an arbitration win

National carrier Qantas chose shock and awe this weekend by taking its long-running industrial relations dispute with three unions to the lockout stage, but an IR lawyer says the tactic may backfire on the airline.

Industrial relations lawyer Andrew Douglas, who was one of 68,000-plus passengers worldwide affected by the airline’s decision to ground its planes, says Qantas may have succeed in forcing its dispute into arbitration, but that might be where the good news ends – Douglas says arbitration is unlikely to provide the outcome it wants.

Douglas, partner at Macpherson + Kelly, says Qantas has shown a willingness to “self-immolate” for a result – arbitration – it has no control over.

“Whatever happens in an arbitration, everyone loses a bit,” Douglas says.

“Qantas says it needs to offshore staff to survive, but there’s a higher likelihood the union case for the protection of Australian jobs will be supported by Fair Work Australia, given its object is to protect employees.”

The airline is claiming that Fair Work Australia’s ruling this morning to terminate the industrial action grants certainty to its customers, with the first flights planned for 2pm.

Qantas and the unions now have 21 days to negotiate, with a further 21 days possible if parties can prove progress has been made. If an outcome can’t be reached, arbitration will follow.

Douglas says while he understands why Qantas became so resentful, the airline has blown its one big bargaining tool – provisions in the Fair Work Act that permit suspension or termination of industrial action.

He adds the airline should have taken the opportunity to conciliate a long ago, and telegraph a date they were planning a lockout, accompanied by a PR campaign to win the hearts and minds of customers.

Douglas says by locking out its employees and stopping flights, Qantas has breached the key rules about lockouts: never damage your stakeholders and get your customers onside.

Beyond the negative publicity and angry customers, Douglas says Qantas will also need to manage an angry workforce for some time.

“It’s delivered themselves an angry workforce,” he says.

“Every time I’ve been involved in a lockout, it’s taken six to 18 months to deliver full productivity again.”

He also argues the stoush seems to be motivated by the desire to be seen as tough – but industrial relations is no longer about being the tough guy.

“This is a fight about strength, but the big issue are completely lost.”

“Everybody is seeing the fight, but they think both parties are behaving badly.”