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Wednesday 2 November 2011

Nothing to see here

In the wake of the extraordinary action taken by Qantas in grounding their fleet at a moment's notice, the (what soon turned out to be short-term) attention of the media turned to who knew what about the grounding. The telegraph came out with a story claiming that the PM had been warned, and that she could have prevented the whole saga if she had just returned a phone call. Luckily, Crikey have snippet from the original online story  which is no longer on the tele's site.



"QANTAS CEO Alan Joyce would have abandoned his decision to ground the airline had Prime Minister Julia Gillard returned his call and promised to intervene directly in the union standoff."
Even though the story had been denied, ltdnews continued to try and run with the line.
JULIA Gillard’s office and three senior ministers were told by Qantas management they had “options available” to avoid the fleet grounding and that CEO Alan Joyce was ready to talk to the PM.
However, when we get to their much quoted ‘script’, we hear this.
All were told: “We recognise the government has a range of options available to you, however we need to make it clear that we will not, and cannot put planes back in the air until these issues are resolved and we have certainty.”
This is their ‘evidence’ that the government was ‘warned’? That, in the ‘warning’ that they might ground flights, they admit that they already HAVE ground flights. Thats not a warning, that’s a revelation after the fact. By then, it is already too late. yet the paper would have us believe that the Government were ‘warned’.


After both the PM and joyce came out to deny this story, tony abbott was asked if he knew anything about it. True to form, yabot had a bubble-head moment, and Labor picked up on that and pursued him all day in Parliament over just what he did know and when. He finally came out and declared that he knew nothing until the Saturday afternoon. Considering we haven't got that in writing (or pledged in blood), there is probably a huge question mark over that.

The Government pursued tabot all day over this, until he finally got up to declare, as shown in the Hansard
the first I heard about it was at about quarter to five on Saturday afternoon. If the Prime Minister and the minister for transport have any doubt, I refer them to a transcript of Steve Price on 2GB where he said he was beside me when I first learned about it. If I had prior notice of what Qantas was intending, I would hardly have booked myself and my family on Qantas the following day"
The question mark got bigger when hockey went on 7.30 with Leigh Sales to declare that "he was told by Qantas well before Saturday that it was planning to ground its aircraft." Perhaps he should have passed this information on to yabot before he had booked his flights.

But the most interesting development in this whole charade. Once it had become abundantly obvious that the Government had not been fore-warned, but huge questions hung over what and when elements within the opposition knew about the grounding, this story became a non-item. The very next day, the only mention was a brief article in the SMH, and the replay of the interview with hockey on theirabc.

Not a mention anywhere else. Even though, the fact that opposition members were aware of an imminent grounding (even though there was no mare industrial action, except for pilots wearing red ties), and allowed tens of thousands of people to become stranded. Not one iota of light hasz been shone on this murky subject.

And they wonder why the msm is held in such poor regard?

46 comments:

  1. Great article Tom R and now today we have the big look over here article in the Tele....The PLOT. Yes the same paper that would have you believe the PM is at fault for QANTAS. It makes you think that the senior journalists who wrote The Plot article were asked to write ANYTHING to take the heat off the Libs. It only makes you wonder just how deeply involved were the Libs in the Qantas dispute.

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  2. So what possible use could the opposition have made of this information?

    Given that any prior opposition knowledge was quite useless, why is this so newsworthy?

    The minister had the legislated discretion to terminate the action, but chose not to – that’s worth some commentary.

    One of the major protagonists is also candidate for ALP presidency – that’s newsworthy too, particularly if his status had any bearing on the decision of the government not to exercise its power.

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  3. So what possible use could the opposition have made of this information?

    ..............

    and allowed tens of thousands of people to become stranded

    I'll leave you with that and see if you can't get yourself a little more 'ill' informed on the matter yomm ;)

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  4. particularly if his status had any bearing on the decision of the government not to exercise its power.

    http://blogs.crikey.com.au/pollbludger/2011/10/31/essential-research-55-45-to-coalition-3/all-comments/#comment-1074472

    http://afr.com/p/national/politics/pm_not_taking_any_prisoners_waPlXeWQYEe7wwjlPvkr0N

    Try to think for yourself, and not just parrot opposition talking points, hey.

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  5. First link goes to a comment on a poll. What are you referring to?

    The second is what I imagine is the point you wish to make –

    “Also, the Prime Minister says that section 431 is an option of last resort, which reflects similar clauses in previous industrial relations that have never been used.
    The section would have been open to legal review. The result would have been that if such a declaration had been made, it would have immediately gone into the courts, meaning a roadblock in the way of getting a termination to the industrial action.
    Gillard says the government, on advice, went the route that paved the way to a more certain and rapid termination of this potentially disastrous action by Qantas and of its dispute with its workers.”


    Here are a couple of (dot) points –
    • The order of FWA may be subject to judicial review. The TWU have advised that they are considering appealing the order. This would be heard in the Federal Court. A judicial review of a ministerial direction would also be heard in the Federal Court.

    • There is no “either/or” provision. The government could have made the application to FWA for the order, AND issued an interim ministerial direction, expiring upon FWA determination.

    • This would have had the planes flying immediately, preventing all the passenger disruption!

    Got an opinion about that, or do you just argue via links!!???

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  6. This would have had the planes flying immediately

    meaning a roadblock in the way of getting a termination to the industrial action.

    You even copied and pasted the relevant section yomm [facepalm]

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  7. "Given that any prior opposition knowledge was quite useless, why is this so newsworthy?"

    Collusion
    Up yours attitude to the travelling public
    Bloody minded arrogance

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  8. Thank you, and you've missed the opportunity to admit that Julia neglected to do everything she could have to prevent the disruption.

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  9. Julia neglected to do everything she could have to prevent the disruption.

    You mean like read minds, or perhaps have some 'insider' knowledge like Hockey has admitted to having?

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  10. No, as I outlined, like using the power that they legislated for themselves.

    As I’ve said, the legislation isn’t “either/or”, they could have used both powers and had Qantas flying again immediately.

    But that point is inconvenient to your political orientation.
    --------------
    Nice to see your friends at the Café making up stuff as “Tom of Melbourne” and using sock puppets.

    It’s one way to get everyone agreeing!

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  11. No, as I outlined, like using the power that they legislated for themselves.

    Which specific legislation is that, because the Governmnet did use the power that they legislated for themselves.

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  12. I’ve explained that above.

    There are 2 mechanisms to terminate a bargaining period.

    FWA issuing an order, once it is satisfied that the national economy, or a part of it, is put at risk. Or by the minister who has the authority to terminate the bargaining period.

    The government included the latter in their FWA legislation, but didn’t use it. If they had used it, Qantas would have had to recommence flying immediately, and unions would have had to lift action.

    Julia has said this wasn’t used because it is untested. Under what circumstances is she willing to test it?

    The government could have BOTH notified FWA and issued a ministerial direction.

    Why not? Probably because ALP Presidency candidate Tony Sheldon would have objected.
    --------
    Nice too that the Café uses sock puppetry to cerate a sense of non stop alignment!

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  13. yomm, that particular amendment was put through by the previous liberal government, not the Labor one. You also pasted in the reason above why this was not the best option.

    meaning a roadblock in the way of getting a termination to the industrial action.

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  14. As I indicated, the government had the option of issuing an interim ministerial direction, and notifying FWA.

    It chose not to use the range of powers at its disposal to get Qantas flying again.

    Even if the ministerial direction had been ruled invalid, FWA would still have been able to come to the same conclusion, within the same timeframe.

    Would you mind simply addressing that?

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  15. FWA would still have been able to come to the same conclusion

    Not according to the opinions as shown in those links I put up earlier

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  16. What, Laura Tingle makes a vague assertion and you think its true! I had no idea she was so well qualified and experienced in this area.

    I thought she was a political commentator.

    To prevent the implementation of a ministerial direction, unions would have had to immediately find a Federal Court Judge willing to issue an injunction against it, and it would have had to have been issued without a hearing.

    Unions would then also have had to seek an injection against FWA hearing the actual application from the government.

    Don’t you have any opinions of your own?!

    **Humour alert***

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  17. There was the other link yomm, that had other opinions

    And yes, I'd take their opinion over yours any day

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  18. And of course that is entirely your prerogative.

    People should form their opinions, but best not to pretend there is anything factual about how it is formed.

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  19. but best not to pretend there is anything factual about how it is formed.

    you talking about yourself there I take it ;)

    I formed my opinion, from those with far more knowledge aboutthe issue than myself.

    You obviously appear to think your knowledge exceeds that of those others, but, going on your histroy, I am dubious

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  20. I just happened to be talking to one of the leading experts about this. It is the subject of plenty of discussion around and about, particularly among the non blogging people I talk to.

    He thinks the government had the option of issuing a ministerial direction, which could have been framed in a way to terminate upon hearing and determination by FWA.

    But no, I’m not going to tell you the name of the person who made this observation.

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  21. Fair enough, you go with your un-sourced, unnamed, opinionator (and the liberal party line too curiously enough).

    I'll just go with those others who have put their names and reputations behind their opinions, which they have backed up with reasoning ;)

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  22. Yes, I’ve read them.

    Laura Tingle’s view can be dismissed because she’s less qualified in this than me, maybe even you.

    The second article doesn’t mention exclusivity. It does not say that the use of one excludes the use of the other.

    It is entirely reasonable to expect that a government minister would have been able to issue an interim direction, to expire upon determination of the matter by FWA.

    This would have to have been observed until –
    • A federal Court judge was persuaded to issue an injunction against it, or
    • The Federal Court heard an appeal against it.

    Either way, aircraft would have been flying earlier, and the disruption to the travelling public would have been less severe.

    But you seem uninterested in those questions.

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  23. Laura Tingle’s view can be dismissed because she’s less qualified in this than me,

    Then why does she make sense, when all you can spout is 'Unions=BOO!'

    ROFL

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  24. For yomm

    However, the Prime Minister warned yesterday that the provision—legislated by the Howard government in 2005—had never been used and was vulnerable to legal challenge.

    This judgment was backed by the professor of Law at the University of Sydney, Ron McCallum, who said the decision to activate section 424 of the Fair Work Act was more prudent and would resolve the dispute more quickly.

    Like an executive declaration, section 424 can be activated only if industrial action is thought to cause significant harm to the national economy, but refers the termination of the bargaining process to the independent umpire.

    “I would have counselled to go to Fair Work Australia,” Professor McCallum said. “What that does is it at least allows the parties on all sides to put the evidence.”

    He said the use of section 431 would prevent the unions from being able to make their case against Qantas in a formal hearing, increasing the likelihood they would seek a judicial review and drag out any final resolution…

    Given the untested nature of section 431, Professor McCallum said the courts could also find fault with the ministerial declaration itself.

    Professor McCallum was backed by fellow employment relations expert David Peetz, from Griffith University, who said the use of section 431 would not have the same clout or legitimacy as a Fair Work Australia termination.

    ”Any gain that might have appeared in terms of expediency would have been far outweighed by the loss in terms of legitimacy,” Professor Peetz said.

    Professor McCallum said the use of section 431 would have to be accompanied by a comprehensive statement of facts and affidavits to explain the decision and minimise the chances of a legal challenge.

    He said this extra documentation would have taken at least an extra day to compile and therefore forfeited any advantage section 431 would have offered in terms of more quickly resolving the dispute.


    Whether the planes could have been up earlier or not is entirely a matter of opinion (you can either take the opinion of the person who puts their name to their view, or a yom of somewhere who knows better than everyone). The fact is, once cancelled, those people were stranded. And that was a result of joyce's actions. The action taken by Gillard not only got the planes back in the air very quickly, it promises more security into the future. Something which could not be said of the other option.

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  25. Oh, I agree that Joyce grounded the airline.

    My issue is whether the government can argue that it did everything in its control to get passengers flying again.

    You’ll note that what those experts suggest is not that there is an “either/or” decision.

    It is simply that the ministerial direction is untested.

    And as I’ve said, it may not have withstood a Federal Court challenge, but until a challenge was successful, the order would have been legally in force.

    A successful injunction would have required an aggrieved party to demonstrate that their rights or benefits were being infringed by complying with the ministerial direction.

    This test would be difficult, given that FWA would hear and determine the matter within days.

    The expert advice only goes to the better option; it doesn’t address the public benefit of using both powers.

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  26. So, you'd rather they tried out a legislation with question marks over it, rather than something they could be sure of.

    While people are stranded.

    Is that the best time to run such a test?

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  27. I see.

    The power to terminate bargaining based on economic impact is rarely used, in fact I don’t recall it being applied under FWA legislation.

    But that’s ok, that could have been used.

    (I think it’s fair to say we’d agree so far.)

    The ministerial direction hasn’t been used. So it’s legal application is uncertain.

    (I think you’d agree with that.)

    The legal advice you’re using doesn’t go to using both legislative provisions.

    (I think you’d agree with that)

    So can you explain why you are arguing that the government should not have used the ministerial power in addition to the FWA notification?

    There is no down side.

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  28. S431 was not used by the PM because she is not stupid. The only yobs pushing s431 are the Liberals, you know the dummies who wrote s431 but chose not to use it. Write an essay about s431 if you like. But as even you can see all parties are at the negotiation table and presenting evidence to a senate committee.
    Meanwhile the PM continues running the nation.

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  29. You’re obviously well qualified Denise.

    If not during a stoppage of Qantas, stranding 70,000+ people, under what circumstances do you think it would be used?

    Why on earth would the government retain a ministerial direction provision that is finds so difficult to use?

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  30. When designing the FWA, Gillard negotiated with all parties, if you remember. I assume it was left as a concession to Business, being one of the provisions of Workchoices.
    Any way as I said only the LIberals are demanding the use of s431, it was not needed to bring Qantas to heel.And as you will agree the PMs preferred option has everyone at the negotiation table.
    So rave as much as you like about s431, that part is done and dusted. And as I am not an academic or a Liberal it matters not to me.Bye

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  31. "only the LIberals are demanding the use of s431"

    That, in itself, is very telling in this discussion ;)

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  32. Still, Tom R Denise & Bacchus haven’t actually suggested a reason that this power wouldn’t be used, in combination with FWA notification.

    …and there is no expert opinion that Tom R has cited that challenges my point.

    The expert opinion goes to which is the better option, not that they are mutually exclusive.

    It simply puts paid to the nonsense being spruiked that the government did everything it could.

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  33. There is no down side

    Lenore Taylor also had a good roundup of just hoe down this side is

    http://www.abc.net.au/insiders/content/2011/s3357235.htm


    …and there is no expert opinion that Tom R has cited that challenges my point.

    I'll highlight it for you for a third time yomm

    Given the untested nature of section 431, Professor McCallum said the courts could also find fault with the ministerial declaration itself.

    http://www.theaustralian.com.au/business/in-depth/julia-gillard-did-the-right-thing-in-qantas-dispute-say-legal-experts/story-fnaskcqt-1226181942236

    One also wonders why Qantas just didn't approach Fair Work Australia themselves? This could have resulted in a similar outcome, without the trashing of the brand. One also wonders why, if Hockey was aware of this action, as he 'alluded' to, he himself didn't counsel them on that course of action?



    The only yobs pushing s431 are the Liberals,

    and yomm and his illusory 'expert' don't forget denise ;)

    It simply puts paid to the nonsense being spruiked that the government did everything it could. ..if it didn't care about risking further chaos

    yomm never finishes any sentence lol

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  34. Tom R, I know Ron McCallum. He’s an outstanding person, and very pleasant company as well. He is widely respected as someone who writes about legislative structures.

    He deserves all the respect for doing all this alone, overcoming his blindness as well just magnifies his achievements.

    But he isn’t a SC, a barrister or a even junior solicitor in the discipline.. He isn’t a seasoned practitioner, he hasn’t even had a job doing it.

    He’s a great lecturer and teacher, but not an expert in how industrial relations operates in practice.

    By all means quote an academic when it is an issue about framing legislation or bargaining structures, but in reality Ron wouldn’t be a great industrial officer for the Federated Clerks Unions, he just doesn’t do that type of work.

    the fact is that the government could have had Qantas flying immediately, with an interim ministerial direction, and they could have used a FWA determination to terminate the bargaining.

    But they didn’t, and I suspect various SCs will soon be writing articles explaining that.

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  35. and I suspect various SCs will soon be writing articles explaining that.

    And I suspect there is a reason they have not voiced an opinion yet?

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  36. Occasionally you should try forming your own opinion.

    Ron McCallum hasn’t conducted any academic research into this, he’s never been a Federal Court judge, and he’s never been an industrial advocate or barrister, or solicitor.

    He’s expressing an opinion.

    If the government had issued a ministerial direction, passengers would have been moving immediately. FWA could have still issued the same determination a day and a half later.

    The fact that (candidate for ALP President) Tony Sheldon is one of the main protagonists is simply ignored.

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  37. He’s expressing an opinion.

    What an epiphany yomm. It's an opinion. And, as I said, the Government chose to take the opinion of a range of people, and came to the conclusion that the uncertainty presented to them was too much to chance on people being stranded for longer

    Your opinion differs (not surprisingly, in line with the liberal party line). But it is just that, an opinion. The Government took the prudent approach. It is that simple.

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  38. There I was starting to believe you when you’d argue that academics are valuable because they thoroughly research their discipline, and their findings are evidence based.

    I thought you usually argued that the importance attached to the academics was that they did not express opinions or musings, but presented fact based findings, beyond the political argy-bargy.

    I suppose you like Ron McCallum’s opinion because if is politically convenient for you.

    I’m glad we’ve established that you’re entirely willing to cherry pick opinion.

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  39. Cherry Pick ROFL. Let me think, I could go with all other opinion, or yours?

    Going with your opinion would have been cherry-picking actually yomm. Try and get something right in this thread would ya ;)

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  40. So now we have the ALP President candidate & TWU Secretary saying that the TWU might appeal the FWA decision.

    The safer decision by the government would have given any party 2 decisions to appeal, FWA and a ministerial direction. Now there is only one Federal Court decision between stability and the situation we were in.

    Great risk management by the government.

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  41. "The safer decision by the government would have given any party 2 decisions to appeal"

    Not for those waiting for a flight on the Saturday night that joyce grounded the fleet.

    Although thank you for finally admitting what has been said all along on this thread, that the Governments action was the best one to get the planes flying quickly, the safest route to do that. Only one impediment to appeal, not two ;)

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  42. You seem to be lacking in any ability to comprehend numbers.

    Why is it in the public interest to provide only 1 hurdle to a return to disputation?

    If the pilots are successful in their Federal Court challenge to the FWA Full Bench decision, and have it set aside, will you then support a Ministerial Direction, or will you just suggest that it should return to an industrial free for all?

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  43. The argument, yomm, was about getting the planes in the air, quickly. This provided only one hurdle, whereas, as you finally acknowledge, the other option has two hurdles. Sure, it 'may' be more difficult to overturn now, but at the time, it would have provided an extra impediment to getting the planes flying quickly.

    As all of those not as smart as you pointed out at the time.

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  44. “it would have provided an extra impediment to getting the planes flying quickly”

    Really, how is that?

    FWA would have proceeded to deal with the government’s application.

    The unions may have sought a judicial review of a Ministerial Direction, but they would have had to observe it until there was one, or until they obtained an injunction against it. The point is that the 2 processes are NOT mutually exclusive. This is something that seems lost on you.

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  45. "but they would have had to observe it until there was one, or until they obtained an injunction against it"

    Which brings us back to the uncertainty, and you cannot say with any certainty that an injunction against the decision wouldn't have been overturned before the planes were even back in the air.

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  46. Really?

    Do you even know how such injunctions are issued? How the Court determines who the aggrieved party is and how their rights may be infringed by declining to issue an injunction?

    When the government declined to use all the powers it had at its disposal, it was complicit in disruption of the travelling public. My view it took a political decision, because it would have been unpopular with its affiliated unions to use the ministerial power plus the FWA referral.

    So far, you’ve not been able to explain why the government declined to use both powers.

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