The Qantas industrial dispute has generated enormous controversy and is likely to make a major contribution to the history of Australian industrial relations.
As in many other industrial disputes, all sides will claim some kind of victory. The broader implications for Australian industrial relations and the future of national regulation are already being debated.
We have a politically-charged debate in which some who usually oppose the use of an industrial umpire have criticised the Commonwealth Government for being too slow to send the dispute to the industrial umpire, Fair Work Australia (FWA). If we are to cut through the spin and politics, we need to understand the operation of the current system of industrial regulation.
When the Howard Government introduced its Work Choices legislation in 2005 it did away with a century of national industrial regulation, based on the conciliation and arbitration power in the Australian Constitution.
Work Choices abolished the general ability to have an industrial dispute conciliated and, if needed, arbitrated. This was replaced by a more robust system of collective bargaining, sometimes called an industrial 'law of the jungle', where appropriately notified industrial action was 'protected' and where safety valve arbitration was only available in carefully defined exceptional cases.
This part of Work Choices was continued under the Fair Work Act, introduced by Labor in 2009. Under the current provisions, protected industrial action can be suspended or terminated where there is a threat to life, personal safety, health or welfare, or where it would 'cause significant damage to a significant part of the Australian economy or a small part of it'.
So the Qantas dispute is not really about the respective merits of the current and previous legislation, but about the way in which our collective bargaining system has operated under both sides of politics. The dispute, more than any other under the new regime, demonstrates what we lost when the conciliation and arbitration system was all but abolished in 2005.
The essential facts of the Qantas dispute are reasonably straightforward. For some months during 2011 various unions with Qantas membership had taken protected industrial action in support of negotiations for new enterprise agreements. These legal actions had put substantial pressure on Qantas, consistent with the operation of a robust system of collective bargaining.
While there was economic pressure on Qantas itself, it was far from clear that it was sufficient to justify the suspension or termination of the protected action.
Qantas argued publicly that the