A DECISION that foreshadowed the axing of 82 jobs at Anglo American's German Creek mine and could help save the company $40m over three years will be appealed by the CFMEU next Thursday.
On November 25 the Fair Work Commission dismissed an application for a bargaining order from the CFMEU, in relation to a plan by Capcoal, a company owned by Anglo American, to axe the jobs of striking workers.
The strike had been over protracted enterprise bargaining agreement negotiations.
Hours after the decision was made, Anglo American began notifying workers their positions would be made redundant.
FWC deputy president Ingrid Asbury dismissed the application as she was "unable to be satisfied Capcoal has not complied with or has breached the good faith bargaining requirement".
However, after ordering the dismissal she warned there may be grounds for a case in the future if Capcoal was found to have replaced redundant workers with labour hire or contract employees.
Although Ms Asbury accepted that the decision to make the workers redundant may have stemmed from the strike, a transcript from proceedings shows that she found the strike had prompted Capcoal to adopt a different way of operating the mine, which required fewer people and would save it $40m over three years.
It then decided to implement that strategy on a permanent basis, which led to the redundancies.
"In those circumstances (because of the strike), Capcoal Management revisited an earlier plan where it had considered parking up the shovel (equipment used to uncover coal) on a temporary basis, and decided to implement this outcome on a permanent basis," Ms Asbury said.
"I am satisfied that the decision was taken for legitimate and valid operational reasons, including a significant cost saving to the company in the order of $40million.
"The result of deciding to park up the shovel permanently was that there was a surplus of employees and it was decided to address that surplus by making a number of positions redundant, with the result that some employees would be dismissed."
She also said the strategy was in line with the intended divestment of the mine.
Anglo American flagged in February it would divest all of its Australian assets.
"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 taken because of the protected industrial action," she said.
But after ordering the dismissal, she warned that if contractor or labour hire employees were engaged on the same basis as Capcoal employees in selecting them for redundancy, a future ruling may find a different outcome.
"In determining the present matter, I do not rule out a future finding that considering contractor and/or labour hire employees, particularly those engaged on the same basis as Capcoal employees in selecting them for redundancy, may be capricious or unfair and may undermine collective bargaining by reducing the number of CFMEU members who may otherwise have remained in employment," she said.
"I make these points to give Capcoal the opportunity to consider its position in relation to these matters and in an attempt to avoid further agitation of these matters in the Commission or elsewhere at great cost and inconvenience to the parties."
The CFMEU will appeal the decision next Thursday.
Bargaining orders can be applied for from the FWC by bargaining representatives, such as unions, if they believe negotiators are not meeting good faith bargaining requirements, or the process is not proceeding fairly.