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Tuesday, 1 November 2011
Page: 7744

Qantas


Senator ABETZ (TasmaniaLeader of the Opposition in the Senate) (14:00): My question is to the Minister for Tertiary Education, Skills, Jobs and Workplace Relations and Minister representing the Prime Minister. I refer to the Prime Minister's claim that to use section 431 as opposed to section 424—

Government senators interjecting

The PRESIDENT: Order! Senator Abetz, resume your seat. You are entitled to be heard in silence, and I am entitled to hear the question. Senator Abetz, continue.

Senator ABETZ: I refer to the Prime Minister's claim that to use section 431 as opposed to section 424 of the Fair Work Act in the Qantas dispute would create 'legal uncertainty' and was 'untested'. I also refer to the fact that the Transport Workers Union boss, Tony Sheldon, as well as Barry Jackson from the pilots' union, are consider­ing challenging Fair Work Australia's decision.

Senator Sterle: What did you know, Eric?

Senator Carr: When did you know?

The PRESIDENT: One moment, Senator Abetz. I am not trying to disturb your question.

Senator Sterle: I am!

The PRESIDENT: That is not the right attitude to have in this place. Senator Abetz, continue.

Senator ABETZ: Given that section 424 of the Fair Work Act had never been used and was therefore untested and that these unions are now threatening to challenge Fair Work Australia's decision anyway, thereby creating legal uncertainty, does the minister concede that he should have made a declaration under section 431 and thereby avoided the grounding of the Qantas fleet?










Senator CHRIS EVANS (Western AustraliaMinister for Tertiary Education, Skills, Jobs and Workplace Relations and Leader of the Government in the Senate) (14:02): As far as I remember the quest­ion—given all the interruptions between its being asked and my rising!—the answer is no. I have made it clear publicly and to the Senate that the government acted on the advice provided by the department about the best method for us to bring to an end the industrial disputation at Qantas following the decision of Qantas to lock out its employees—lock out thousands of its workers—and begin notifying them that it would do that from 8 pm on Monday. As we know, Qantas then took the action of grounding its aircraft from 5 pm on Saturday. Our advice was that the best way of bringing the issue to a head and getting orders to terminate the action was to apply, under section 424 of the act, for Fair Work Australia to make orders ending the bargaining period and terminating all industrial action. That was the advice we were given. That was the advice we accepted. We moved immediately to make that application to Fair Work Australia and, as we know, Fair Work Australia convened at 9 pm on that Saturday evening to begin immediately to deal with it.

So that was the advice the government received, and we acted upon it. The references Senator Abetz made are referen­ces to an explanation we were provided with as to why using that section was preferable to using section 431. That was the legal advice the department provided to the government. It included concerns about potential judicial review and issues of procedural fairness that might apply to the use of section 431. Based on the advice we got, we took that decision—and it worked.


Senator ABETZ (TasmaniaLeader of the Opposition in the Senate) (14:04): Mr President, I ask a supplementary question. If the government in fact acted on departmental advice, why did it seek in the alternative—as was the minister's preference—a suspension as opposed to a termination of the industrial disputation? Why did the minister do this knowing that it would have left Qantas planes and passengers grounded?


Senator CHRIS EVANS (Western AustraliaMinister for Tertiary Education, Skills, Jobs and Workplace Relations and Leader of the Government in the Senate) (14:05): Senator Abetz is again relying on newspaper articles that have been wrong and misleading for days now. I made it clear that we acted on that advice. I also confirmed for Senator Abetz that at all stages the Common­wealth government sought the termination of all industrial action. That was my recommen­dation. That was the submission made by the Commonwealth—that all industrial action be terminated. It argued that, if Fair Work Australia was not prepared to grant immediate termination, there be at least a suspension. But the Commonwealth argued strenuously—

Senator Abetz: Ha ha!

Senator CHRIS EVANS: Senator Abetz, read the transcript.

Senator Abetz: I have.

Senator CHRIS EVANS: The Commonwealth government, at my instruction to our advocates, argued at all times for full termination of all industrial action. (Time expired)






Senator ABETZ (TasmaniaLeader of the Opposition in the Senate) (14:06): Mr President, I ask a further supplementary question. I note the minister's denial that the government sought in the alternative to suspend the action. How does he explain, in the very first paragraph of Fair Work Australia's decision, 'The minister has made application for an order under section 424 of the Fair Work Act 2009 terminating, or in the alternative suspending for a period of 90 days, protected industrial action'? Which was it, Minister? Or did Fair Work Australia get it wrong as well? (Time expired)


Senator CHRIS EVANS (Western AustraliaMinister for Tertiary Education, Skills, Jobs and Workplace Relations and Leader of the Government in the Senate) (14:07): I know Senator Abetz is getting excited, but that is exactly what I said. We argued for termination. We put a very strong case for termination. We argued that, if, in the alternative, termination was not granted, a suspension be granted. That is what we put to the commission. It is on the record. It has been in the public arena. The Common­wealth's position has always been clear. We argued for full termination. So, when Senator Abetz confirms that by reading the decision, he is right.

Senator Abetz interjecting

Senator CHRIS EVANS: That is exactly what we argued for, Senator. We argued for full termination and we argued that, if, in the alternative, Fair Work found that it had not been proven, if they were not satisfied by that case, they should at least grant suspen­sion. But I am pleased to say that Fair Work accepted the Australian government's argu­ments, granted full termination and therefore ended the dispute. (Time expired)