‘Protected’ strikes no bar to sack, says Fair Work Commission

The Australian, January 19, 2017:

Australia’s powerful mining union is flexing its muscles for a Federal Court showdown after the workplace umpire upheld the right of bosses to sack legally striking workers in a decision ­applauded yesterday by employer groups.

The Construction Forestry Mining and Energy Union has threatened to challenge the Fair Work Commission ruling in the Federal Court, with mining division national secretary Andrew Vickers yesterday accusing “conservative’’ members of the tribunal of “improperly’’ applying the nation’s workplace laws.

He said the CFMEU was ‘’disgusted” by the commission’s full bench upholding the right of Anglo American to sack 83 workers — 33 striking CFMEU members and 50 contractors — at its German Creek mine in Queensland.

But employers said the decis­ion confirmed the right of companies to make “prudent commercial decisions’’ in the face of significant operating pressures.

About 140 workers have been taking protected industrial action since August last year, and Anglo claimed there were insufficient staff available to operate key equipment. It responded by implementing a business restructure designed to save $40 million over three years.

While noting that the subsequent loss of 83 jobs was unfortunate, especially given employ­ment could be difficult to gain and maintain in central Queensland, the bench said the restructure was motivated by “legitimate business concerns”. The restructure was a “legitimate response to the commerci­al and operating circum­stances which (Anglo) found itself in as a result of the protected industrial action”.

The decision came after the CFMEU appealed against an earlier ruling allowing the terminations. In rejecting the appeal, the bench dismissed the union’s argument that Anglo was not entitled to make the workers redundant.

“Employees who engage in protected industrial action are ‘protected’ in that their action is not unlawful under the (Fair Work) act and that they are immune­ from certain civil and criminal liability for engaging in the action,’’ the three-member bench said.

“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.’’

It found Anglo’s conduct was not unfair or capricious and the union appeal must be dismissed.

In a decision last month, Federal Court judge Anna Katzmann issued interim orders reinstating two of the 33 employees.

Australian Mines and Metals Association director of industry services Tara Diamond said while she was sympathetic to the employ­ees affected, she welcomed the full-bench decision.

“The coal sector has seen widespread redundancies in recent years as companies respond to significan­t cost and operational pressures,’’ she said. “In this envir­onment, it is unsurprising that Anglo may have been seeking operati­onal efficiencies.

“We agree with the commission’s finding that reducing the mine’s labour costs was a commercial opportunity identified by the company as a result of the circumstances it was put in by its striking workforce.”

But Mr Vickers said the union was “pretty frustrated and annoye­d and disgusted with the decision and with the general applic­ation by the Fair Work Commission on a large range of matters”.

The union was “seriously considering” a Federal Court appeal.

“We think it’s a lousy outcome, we think it’s a wrong application of the law, and we have our external lawyers giving us advice as to whether there are grounds to appeal to the Federal Court,’’ he said.

“Obviously, it would appear as though that full bench decision is in conflict with the decision of Anna Katzmann in the Federal Court — not exactly the same argu­ments, I understand — but we’re very concerned that we have got what appears to be the prima facie inconsistent application of the law by one arm of the judiciary as opposed to another arm.”

He said the union was “bitterly disappointed with the decision but not terribly surprised given the make-up of the Fair Work Commission these days’’.

“There are a bunch of conservative government appointments on the bench,’’ he said.

“I’m not speaking specifically to this bench but on the Fair Work Commission and they have consistently, in our view, been improperl­y and very conservatively applying the law, particularly as it applies to bargaining.”

He said the principle that workers could be terminated in res­ponse to industrial action “pro­tec­t­ed” under the act needed to be tested by a “proper court’’.

“It’s not terribly well protected is it? It’s a terrible misnomer that workers believe they can take protected industrial action to advance their industrial interests and then find out that they’re terminated on a sham restructuring arrangement,’’ he said.

“If the full bench is correct … the law is wrong and flawed and needs to be changed.”