QPC Briefing No 9 2025
Intractable Bargaining
As we continue through the LH EA negotiations, it is important that pilots are familiar with all available options, including the process of "Intractable Bargaining". Intractable Bargaining is a relatively new mechanism under Australian industrial law that can be utilised when negotiations reach a stalemate. In this briefing, we will explain the process, the advantages it may offer Qantas Long Haul pilots, and key considerations before proceeding down this path.
What is Intractable Bargaining?
Intractable Bargaining provisions are part of the Fair Work Act 2009 (Cth) and were strengthened by the "Secure Jobs, Better Pay" reforms passed in late 2022.
In simple terms, if bargaining reaches a point where further negotiation is unlikely to result in agreement, a bargaining representative (such as the AFAP) or Qantas, can apply to the Fair Work Commission (FWC) for an "intractable bargaining declaration".
If granted, the FWC can then either:
- Arbitrate the outstanding matters and make a Bargaining Determination (a binding decision that replaces an EA); or
- Facilitate final conciliation efforts before making a determination.
Intractable bargaining is not entered lightly. The FWC must be satisfied that:
- There has been genuine bargaining over a reasonable period;
- There is no reasonable prospect of agreement without intervention;
- All other dispute resolution avenues (such as conciliation) have been exhausted.
Why Does This Matter for Long Haul Pilots?
Qantas' entrenched "cost envelope" approach and repeated refusals to engage in genuine movement on key issues such as fatigue mitigation and appropriate offsets raises the possibility that intractable bargaining may become a necessary strategic tool.
Potential Advantages:
- Independent arbitration: Removes the ability for the Company to continue delaying or stonewalling key claims.
- Transparency: FWC proceedings are transparent, and parties must justify their positions with evidence (scientific studies etc).
- Fair consideration of pilot concerns: Issues like fatigue, fair pay with CPI considered, and scope protections can be formally assessed by an impartial tribunal.
- Leverage: The possibility of arbitration may encourage the Company to negotiate more seriously before matters escalate, particularly in the interest of securing some of their key claims.
Considerations Before Proceeding
While intractable bargaining has potential to provide a desired outcome for pilots, there are important considerations:
- Loss of full control: Once a matter enters arbitration, the final decision rests with the FWC, not the pilots or AFAP.
- Outcome uncertainty: The FWC is required to make decisions it considers "fair" in the circumstances — it may not grant all claims.
- Timeframes: the timeline to an outcome has the potential to extend for a considerable period of time depending on the complexity of the issues. Preparation for hearings and determinations takes time and requires extensive supporting material and evidence.
- Industrial environment: The broader industrial climate and past case law may influence outcomes. We would need to present a strong, evidence-backed case and will adjust our strategy as required when further decisions are issued.
It is for these reasons that your AFAP LH EA team negotiates with the next and following steps in mind, always reserving all options while continuing to seek a negotiated outcome first.
Next Steps
We remain committed to achieving a negotiated outcome that reflects your feedback and priorities. However, we are preparing contingencies, including preparation for a possible intractable bargaining application if necessary.
We will continue to update you on developments and will seek your input before any major strategic decision is made.
Questions and Feedback
For further information about intractable bargaining, or if you have any questions regarding negotiations, please contact your AFAP Qantas Pilot Council at qpc@afap.org.au, or the AFAP legal and industrial team of Senior Legal/ Industrial Officer Pat Larkins (patrick@afap.org.au) or Senior Industrial Officer Deanna Cain (deanna@afap.org.au).
Regards,
AFAP Qantas Pilot Council
Michael Egan – Chair
Mark Gilmour – Vice- Chair
Daniel Kobeleff – Secretary
Michael Armessen – Committee Member
David LaPorte – Committee Member
Josh Chalmers – Committee Member
Rob Close – Committee Member