Unequal opposite reaction

The old adage in physics, ‘to each action there is an equal and opposite reaction’ doesn’t apply in enterprise bargaining disputes. A full bench of the Federal Court has rejected the pilots’ union claim that Qantas overreacted to industrial action last year when Qantas grounded the fleet.

The pilots’ union, AIPA, told the court that all the pilots had done was wear red ties and make announcements at the end of flights about their dispute with Qantas. In retaliation AIPA said, Qantas grounded the fleet. Subsequently, a full bench of Fair Work Australia terminated protected action from all sides and ordered forced arbitration of the dispute.

AIPA’s argument was that Qantas’ lockout was a gross overreaction but the federal court made the observation that an employer’s response to protected action did not need to be “reasonable, proportionate or rational”. The court said so long as there was a fundamental link between the employer’s response and the industrial action, then proportionality was not at issue. In fact, the court said a lockout was really the only legitimate industrial response available to Qantas.

This case is important because it makes clear that provided there is a ‘cause and effect’ element to the employer’s action, it is lawful and it doesn’t matter even if it is aimed at bringing protected action from unions to an end. This suggests some employers may reach for the lockout lever a lot earlier in these types of disputes to force the parties into arbitration.

Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 (10 May 2012)