CFMEU loses appeal at Capcoal
“UNFORTUNATE” CFMEU employees will need to try and find new jobs in mining.
Tuesday 17 January 2017
The CFMEU has failed in its attempt to appeal a decision by the Fair Work Commission late last year to not impose a bargaining order on Anglo American which would have seen sacked union members returned to their former roles.
In December the CFMEU argued in the FWC that when Anglo decided to make 83 employees redundant - a significant number of whom were part of the 140 employees who took protected strike action for nearly five months - it represented a failure to fairly bargain over a new Enterprise Agreement.
However, FWC Deputy President Asbury rejected their claim, even though she 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.
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.
“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,” she said.
“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.”
A full Bench of the FWC agreed to have a second look at the findings of Deputy Asbury and yesterday concluded that the decision was valid.
“It is not unfair for an employer suffering loss and damage as a result of employees taking industrial action to decide, on legitimate business grounds, to restructure its business to manage or offset that loss and damage, and to decide to make employees redundant in the process,” the FWC said in dismissing the appeal.
“In this case, we are satisfied that the Respondent [Anglo American] has shown legitimate business reasons that justify its conduct, specifically, that its conduct assisted it to save approximately $40 million.
“Employees who engage in protected industrial action are “protected” in that their action is not unlawful under the Act and that they are immune from certain civil and criminal liability for engaging in the action.
“This does not, however, mean that an employer of employees who take protected industrial action is not able to respond to protected industrial action, or to circumstances created by such action, in a manner that addresses its legitimate business interests, provided it meets its obligations under the Act.
"On the basis that the Respondent’s conduct was not unfair or capricious, and as a result, the appeal cannot succeed and must be dismissed."