CFMEU “warehousing” disputes
When does an old Enterprise Agreement become irrelevant?
Wednesday 30 November 2016
THE CFMEU has failed in its attempt to force Peabody to sack all labour hire and contract employees at North Goonyella mine and reinstate around 21 former full-time employees who were made redundant in 2013.
Like a lot of disputes that go to the Fair Work Commissioner, the dispute was as much about the process for challenging a redundancy, as it was about the fairness of the redundancies themselves.
At the heart of this debate was whether the conditions of the 2015 Enterprise Agreement (EA) at North Goonyella that came into effect in December 2015 - several months after the employees were made redundant - should supersede the terms of the 2012 EA that prevailed at the time the miners lost their job.
The 2015 EA was more explicit about casual and contract staff losing their jobs before full-time employees could be forced out, and the CFMEU argued a 2014 FWC decision to hear a similar - but slightly different - case provided a precedent.
However, the Management at North Goonyella argued firstly that the 2015 agreement was not in effect in August when the employees were made redundant.
Secondly, that there had already been a FWC dispute lodged in 2015 by the CFMEU over the redundancies, in which North Goonyella were cleared of any wrongdoing.
They also argued that since the 2015 decision, the CFMEU had not pursued the issue further, and allowing them to effectively “warehouse” disputes would undermine one of the key principles of the redundancy provisions in the fair work act. That provision demands that disputes are lodged within 21 days of an employee losing their job, so both parties can get a ruling as quickly as possible and move forward with certainty.
The FWC agreed.
“Those employees cannot be in dispute in relation to terms of an agreement that never applied to them, a dispute can only be brought under the 2015 agreement by an employee who is covered by that Agreement,” Deputy President Asbury said.
"A dispute under the 2012 agreement cannot be dealt with under the dispute settlement procedure in the 2015 Agreement.
“[Even] If I am wrong in my conclusions in relation to jurisdiction, I would dismiss the present application on public interest grounds.“Essentially, the CFMEU is seeking to rearticulate the same matters that have been comprehensively dealt with by Senior Deputy President Hamberger in his Decision of 10 July 2015, and I agree with the submission for North Goonyella that the CFMEU should not be permitted to warehouse rights to bring disputes to the Commission.”