In November 2016, the FWC dismissed the CFMEU’s application for a bargaining order against an employer, finding that the employer had not acted unfairly or capriciously in deciding to dismiss employees as a result of a decision it took to protect its business from economic loss caused by industrial action (Construction, Forestry, Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal [2016] FWC 8847).
The FWC found that the good faith bargaining requirements (in particular ss 228(1)(e) and 231(2)(c) or (d) of the Fair Work Act 2009 (Cth)) do not operate, unless and until the FWC is positively satisfied that a bargaining representative is not acting in accordance with the good faith bargaining requirements.
In reaching its conclusion the FWC found that:
- there was a causal connection between employees who were CFMEU members taking protected industrial action, and the employer’s decision to park up a shovel which caused a surplus of employees
- the surplus of employees was resolved by the employer making some positions redundant
- although the industrial action contributed to the employer’s decision to engage other mining methods, resulting in less need for personnel, this was a clear and methodical decision. This was supported by substantial evidence representing significant operational and financial reasons such as a saving of over $40 million
- it was not unfair or capricious for an employer suffering loss and damage as a result of employees taking protected industrial action to decide, on legitimate business grounds, to restructure its business to manage or offset that loss or damage; and
- this meant that the employer had not acted unfairly or capriciously in dismissing employees and did not fail to meet the good faith bargaining obligations.
This decision was unsuccessfully appealed by the CFMEU to the Full Bench of the FWC (CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal [2017] FWCFB 317). On appeal the Full Bench found that the employer, in deciding to park up the shovel, was motivated by and acted in accordance with legitimate business concerns and its actions were not capricious or unfair in the particular circumstances.
Authors: Shannon Chapman, Counsel; Emilie Maddox, Senior Associate; and Jordana Maycock, Seasonal Clerk.
