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Australian Government Solicitor

 

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Behind the scenes of the Qantas dispute

It's not unusual for AGS people to be involved in headline stories – in almost every news item concerning the government and a legal issue, AGS is there. While the Australian public watched the extraordinary events of the Qantas dispute unfold on the news in October 2011, a handful of AGS practitioners were in the thick of it.

Andrew Berger, Sarah Wright, Karina Harvey, Tom Howe QC and Craig Rawson worked under extreme pressure over the weekend of 29 and 30 October to help bring about the successful outcome achieved early on the Monday morning. 

On the Saturday morning, Qantas CEO Alan Joyce announced that Qantas would ground all aircraft from 5 pm that day because of a decision taken by Qantas to 'lock-out' various employees with effect from 8 pm the following Monday. The imminent lock-out was Qantas's response, as employer, to a long-running industrial dispute with unions.

At 4.30 pm Senior General Counsel Dispute Resolution, Andrew Berger, received a telephone call from the Legal Group at the Department of Employment, Education and Workplace Relations (DEEWR). The Minister wished to make an urgent application pursuant to s 424 of the Fair Work Act 2009 to terminate or suspend the lock-out. Section 424 enables Fair Work Australia (FWA) to do this if the protected industrial action might, relevantly, cause significant damage to an important part of the Australian economy.

Then, at 5 pm, Qantas grounded all of its domestic and international fleet. Andrew arrived at AGS, quickly followed by Senior Executive Lawyer from the Employment Law team, Sarah Wright, and Senior Lawyer from the Law Enforcement team, Karina Harvey. Chief Counsel Dispute Resolution, Tom Howe QC, arrived soon after and was briefed on developments.

Between 5 and 10 pm that night, arrangements were made with FWA to convene an urgent hearing in Melbourne at 10 pm, with video links to Sydney and Canberra. Arrangements were also made for evidence to be given about the damage that would be caused to the Australian economy as a consequence of the grounding of the Qantas fleet. An application with supporting annexures was prepared and filed with FWA.

At 10 pm, the hearing commenced. FWA was constituted by President Justice Giudice, Senior Deputy President Watson and Commissioner Roe. Tom Howe QC appeared with Andrew Berger for the Minister, instructed by Sarah Wright and Karina Harvey in Canberra. Counsel also appeared for the parties in Sydney and Melbourne, including the Ministers for Industrial Relations in NSW and Victoria, Qantas and the various unions involved.

On Sunday 30 October, at 1.20 am the hearing was adjourned until 2 pm. Throughout that morning, the AGS team conducted further legal research, obtained further instructions and undertook numerous tasks necessary to prepare for the hearing that afternoon. An additional counsel from the senior bar in Melbourne was added to the Counsel team, led by Tom and instructed by Craig Rawson.
The hearing resumed at 2 pm with further evidence called by Qantas. Their witnesses were cross-examined and, at 8 pm, the parties were called upon to make submissions. The submissions concluded around midnight and the Tribunal indicated it would give its reasons for decision.

On Monday 31 October, just after 2 am, the Tribunal handed down its decision to terminate the dispute, the primary remedy sought by the Minister. Tom, Andrew and Sarah were asked to attend a teleconference with senior Commonwealth officials to discuss the decision.

At around 3.30 am, Sarah, Andrew and Tom finished work. They had been working for approximately 29 hours of the previous 34 hours since instructions were first provided. At 2 pm, as a result of FWA’s decision, Qantas flights recommenced.

Departmental secretaries thanked those who worked on the matter, and commended the minute-to-minute judgment calls which had to be made in the course of presentation of the Minister's case.

This is an extract from the 2011–12 AGS annual report