Business is business despite strike
ANGLO fair but disingenuous, and possibly untruthful over redundancies.
Wednesday 14 December 2016
The Fair Work Commissioner who verbally rejected the CFMEU’s recent attempt to have a bargaining order imposed on Anglo American over its recent redundancies at the CapCoal mining complex has released a detailed 50 point explanation of his reasons for doing so.
The CFMEU had argued that when Anglo decided to make 83 employees redundant - a significant number of whom were part of the 140 striking employees - it represented a failure to fairly bargain over a new Enterprise Bargain.
In recognition of this, the CFMEU requested that the FWC order that striking unionised workers be reinstated and apologised to by Anglo American.
However, Deputy President Asbury rejected their claim, even though he conceded that Anglo American had been using labour hire to fill positions vacated by striking workers and that striking workers would suffer for their strike action.
This week he explained why.
The fundamental principle applied by Deputy President Asbury was that the decision by Anglo to shut down a pre-strip circuit at the cost of 83 jobs, was based out of business necessity, rather than out of malice toward the striking workers.
Despite the fact that many of those striking were key people for the shovel circuit, and their absence had made the circuit unviable.
“The evidence establishes that because of the industrial action there were insufficient operators attending for work to operate both the draglines and the Shovel and its associated fleet,” he said.
“The dragline is more cost effective to operate than the Shovel because it uses electricity and does not require a substantial fleet of other equipment to work in conjunction with it.
“The Company opted to focus its available labour resources on the operation of the dragline, and as a result, the Shovel fell behind the dragline and reached a point of no return where it could not operate for several months and was required to be parked up for at least that period.
“In those circumstances, Capcoal management revisited an earlier plan where it had considered parking up the shovel on a temporary basis and decided to implement this outcome on a permanent basis.
“I am satisfied that this decision was taken for legitimate and valid operational reasons including a significant cost saving to the Company in the order of approximately $40 million.”
“Further the decision to permanently park up the Shovel is consistent with the strategy of the business given the intended divestment of the mine.
"In short, the genesis of the decision which will result in the redundancies was before the protected industrial action commenced, and although related to the protected industrial action, was not made because of the protected industrial action.”
Despite this finding, Deputy President Asbury said management at Capcoal had been: “at best disingenuous and at worst untruthful” in the way it told its workforce about it presented its proposal to shut down the pre-strip circuit.
However, he said there were mitigating circumstances, and even if there weren’t, it did not outweigh the arguments above.
“In my view, sustained and ongoing industrial action involves risk on both sides,” he said.
“From the employer’s perspective, those risks include that loss and disruption associated with industrial action will outweigh the cost of conceding its position.
“For employees, the risks include that protected industrial action will cause damage to the employer which result in a review of its operational requirements and consequential restructuring.
“Where such review and restructuring is genuine and based on valid business grounds it will not be capricious or unfair conduct.”
However, in a caution to Anglo American, the Commissioner said he remained open to further involvement in the negotiations, and did not rule out intervening on how permanent, contractor and Labour Hire employees are selected for redundancy.
“In determining the present application, I do not rule out a future finding that in considering contractor/labour hire employees – particularly those engaged recently to fill positions while employees of the Company were taking protected industrial action – on the same basis as Capcoal employees in selecting employees for redundancy, is capricious or unfair and will likely undermine collective bargaining by reducing the number of CFMEU members who may otherwise have remained in employment," he added.