German Creek miners are striking over Enterprise Bargaining Agreement negotiations.
German Creek miners are striking over Enterprise Bargaining Agreement negotiations. Lucy Smith

Recent cases have made forcible redundancies easier: expert

A LEGAL professor says recent High Court and Federal Court cases have made it easier for employers to make workers forcibly redundant.

Professor Graeme Orr from the UQ School of Law said mining union CFMEU was likely looking at two options after Anglo American announced last night it planned to make 90 German Creek mine workers redundant.

Last night Anglo American said the decision was made "to address a challenging commercial environment and unplanned delays to production".

But the timing, five weeks into protected industrial action over Enterprise Bargaining Agreements, prompted CFMEU district vice president Glenn Power to brand it a "hostile ambush" on the unionised workforce.

Prof Orr said CFMEU would probably look at either bringing an adverse action claim in the Federal Court or an unfair dismissal claim through the Fair Work Commission.

He said adverse action was a more costly and lengthy process, but came with more serious remedies - including that the employer would have to re-hire employees and may have to pay a fine.

"It's a civil penalty offence to dismiss or even just to take any adverse action against someone for lawful union activities, which includes protected industrial action," he said.

Yet Prof Orr said recent cases had made proving adverse action more difficult for employees.

"Though there's meant to be a reverse onus of proof on the employer, to prove that their purpose for acting did not include victimising strikers or unionists, recent cases have made it easier for employers," he said.

"The employer can take the witness box and say 'We only did this for one reason'. If the judge thinks them sincere, or the union cannot find a smoking gun in an incriminating document, the employer only has to pay the normal redundancy pay."

Prof Orr said the CFMEU, as an alternative, could consider unfair dismissal, which was cheaper and faster.  Although reinstatement for unfair dismissal was not guaranteed, if the dismissals were not 'genuine redundancies' the Commission could order it.

Union considering all legal options

CFMEU legal officer Rowan Anderson said it was too soon to say what path the union would be taking, but it was "considering all legal options".

"We hope that we can dissuade the company from going down the path that they're going down and we're deeply suspicious of the proposed changes, given the timing," he said.

Mr Anderson said CFMEU had received information that the company was continuing to hire casual labour hire.

Anglo American representatives will meet with the union and workers tomorrow morning.

Mine staff continuing to strike

WORKERS from German Creek mine are continuing to demonstrate at Camm Park in Middlemount today.

CFMEU district vice president Glenn Power said the 140 employees were "fearful for their jobs".

"This premeditated and co-ordinated attack by Anglo is nothing but a tool of intimidation aimed at picking off workers who are vocal about protecting their rights and conditions," Mr Power said.

"It is despicable that under our current industrial system, a company can drag a bargaining process along for almost three years, have no intention to bargain in good faith, and simply get rid of workers who are only trying to do what's right for them and their families."



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