Definition and Causes of Industrial Dispute
Discuss about the Industrial Dispute of Oaky Creek Coal Pty Ltd.
Industrial dispute refers to the conflict or the difference in opinion in between the workers and the management, regarding the employment terms. Usually the industrial dispute covers a disagreement in between the representatives of the employer and of the employee, which usually takes the form of trade union, with regards to the working conditions and/or pay, and can also result in industrial actions. In cases of industrial dispute, it is often seen that the workmen and management, i.e. the parties to dispute, attempt to put pressure on each other. The workers can resort to strikes and the management can resort to lockouts in such cases (Bruley, 2010).
The industrial disputes are a disadvantage for both the parties. For the employers, the industrial disputes result in the work being put to stop, as a result of which the costs are increased, coupled with fall in turnover and sales, ultimately costing company its profits. The company can be required to compensate to different parties, has to bear economic effects and non- economic effects, along with instances of property destruction, physical intimidation and personal injury. For the employees also, industrial dispute brings demerits. The biggest loss is that of income, in terms of wages and allowances being ceased, along with hardships being caused to the family members and the employee. They can also suffer a personal injury, and a threat of losing the job looms in case the dispute is not settled (Barry and Wilkinson, 2011).
The Fair Work Commission has helping of employees and employers in solving the workplace disagreements and disputes as amongst its main functions (Floyd et al 2017). The Fair Work Act, 2009 (Cth) states one of the objects of the Fair Work Commission as providing effective and assessable processes for solving the disputes and grievances (Fair Work Commission, 2016). This report is focused on the role played by Fair Work Commission in resolving the long running industrial dispute in Oaky North Mine of Glencore and Construction, Forestry, Mining and Energy Union (CFMEU).
The collective agreement of Glencore with the coal miners of Oaky North expired over two and a half year ago. Since then, the CFMEU represented the workers and bargained for getting a new deal. However, Glencore came to the table pushing a wave of attacks, which included the stripping of agreement of clauses regarding the right to union representation, safety and rostering. There were also demands that the workers had to accept a higher payment for accommodation and a wage cut. The theme here, as the workers, was that the company never wanted to accept the workers as permanent workforce and wanted to keep it entirely casual. The allegations were that Glencore wanted to implement whatever roster they wanted to apply and that too without the union having any say in it. The company wanted to increase the costs of accommodation the moment the enterprise bargaining agreement expired. As Glencore owned everything in the area, raising costs of houses was easy for them (De, 2017).
Effects of Industrial Dispute on Employers and Employees
This resulted in the coal miners of Oaky North rejecting the terms of the company. The workers started out week long stoppages from May. As a response to this, Glencore locked the workers out in July. Since then, the miners got an email on every Tuesday at 12 pm to not return to work as instructions. Continuously, a picket line was maintained outside the mine, which the contractors operated as the workers had been locked out (De, 2017). As a result of the picket line ferocity and Scabby the Rat, the Fair Work Ombudsman began a formal investigation in the conduct of the coal union (Allen and Landau, 2018). The leadership was informed regarding the same. The Fair Work Ombudsman sought to understand the union’s role in organizing and supporting of picket, along with workers being paid to do so (Stevens, 2018). Both the parties were doing wrong here as the company took services of contractors, whilst the CFMEU pad subsidy wages to locked-out workers while they kept picket line outside the mine site. Ultimately the Fair Work Commission was involved for getting a new enterprise agreement between the workers and the company (Terzon and Robinson, 2018).
There were a number of claims made against Oaky North Coal Mine of Glencore, which were rejected by the company. The company claimed that the CFMEU members were not victims, but they were the ones who were misusing the Fair Work Act for justifying a national campaign. They further stated that CFMEU was using bully boy tactics against the individuals who continued to work at the coal mine. The company highlighted the manner in which it had agreed with a new enterprise agreement before the Fair Work Commission, which could have resulted in the lockout ending weeks ago, but CFMEU decided to walk away from the deal and voted against the agreement. CFMEU was taking advantage of evergreen nature which the Fair Work Act gave to the enterprise agreement (Glencore, 2018).
Glencore claimed that when CFMEU walked away from the agreement, they proved that they were using the Oaky North miners as a front of national industrial relations campaign. The company’s Chief Operation Officer, Ian Cribb, believed that the union held no interest in ending the dispute. The company backed up its proposed enterprise agreement stating that it was reasonable and fair as it protected the rights of workers as had been covered under the Fair Work Act, maintained average annual wage, proposed wage increase, and maintained accommodation rent, which included the meals and the other services (Glencore, 2018).
Role of Fair Work Commission
The company turned the direction towards the 245 people who were coming to work daily and had to go through offensive, abusive and threatening behaviour which their union leaders condoned and yet exhibited at times, while CFMEU keeping the focus towards picket line and lock out. The company claimed that the workers coming to work had the legal right of working and of supporting their family. The company, in defending itself, highlighted its contributions to the economy, in terms of paying royalties and taxes, purchasing goods and services, and paying wages and salaries (Glencore, 2018).
The issue in dispute for CFMEU was regarding the Oaky workers getting a new enterprise agreement based on their wants. There were a number of negotiations which took place but which were turned down by one side or the other. The CFMEU suggested enterprise bargaining agreement was rejected on different grounds by the Oaky workers, be it on conditions regarding retrenchment, severance, dispute procedures, workplace representations or casual hires, along with allowing Glencore to change the rosters without the workers being consulted. This led to the Oaky North miners taking courageous stand against the company and fighting as a combined force (Cook, 2018). The workers also justified the picket line, as being a protest against the Oaky staff and contractual employees who were performing their work, whilst the workers took protected industrial action and advanced the bargaining position of CFMEU (FWC, 2017). CFMEU asserted the issuance of allegation letters and surveillance activities as unfair conduct on part of the company (Gahan, Pekarek and Nicholson, 2018).
CFMEU represented the workers and negotiated on their behalf in getting the new enterprise bargaining agreement finalized, which the Fair Work Australia was hoping for and for which they highlighted the desire of assisting if the need be. When the Fair Work Commission recommended the third enterprise bargaining agreement, the workers retracted it saying that if the recommendations of the Fair Work or of the Commission had never been adopted by the company before the dispute, why they should accept it. One of the workers stated the theme of the dispute was the attempt of Oaky to increase the use of contract and casual workers which resulted in their job security being put at risk. The company was attempting to use the contractors as they could be easily supplemented and they could easily be gotten rid of where the company no longer needed them (Terzon and Robinson, 2018).
Case Study: Long-running Industrial Dispute at Oaky North Mine of Glencore and CFMEU
The union, i.e. CFMEU agreed that the protracted and nasty dispute was got good for anyone and yet agreed that the offer made by the company for resolving the dispute was inadequate. They stated that substandard agreement presented before them was a demonstration of how the members were dealt by the company. Fair Work Commission, in view of Julian Teicher, the Central Queensland University employment and workplace relations teacher, was powerless in imposing a solution. This was due to the dispute not being so big in magnitude which was harmful to public welfare or harming national economy, which could bring in Fair Work Commission to impose determination. The weakness of legal situation was highlighted through this incident, as it was deemed that the matter could not be solved through conciliation or mediation (Terzon and Robinson, 2018).
The workers also highlighted the manner in which the contractor labourers were being used by the company to undermine the safety standards in that particular mine. This was because the work of the permanent employees was to enforce the safety standards; but the contractor labourers are not trained and also lack the necessary experience. Since the lockout of the workers, the mine failed dust limit standards of the industry and even the mine had to be shut by the mining inspector as an electrical fault resulted in fire. The protesting miners feared death. The safety record of the company was also referred. With the union being pushed out of question, these standards and safety of workers were meant to deteriorate (De, 2017).
The Fair Work Commission played a crucial role in this entire dispute. This was not just in resolving this dispute, but also during this entire dispute. Apart from the employees being threatened, they were constantly monitored. The company used military styled tactics in order to intimidate the union members. The company even admitted to employing army of private security guards for monitoring the union members and their families. Evidence was presented by a security contractor to the Fair Work Commission in this regard. As a result of this, the Fair Work Commission ordered the company to stop the surveillance of union members and for withdrawing the directive which banned the workers from wearing the union gear. The conduct of Glencore was deemed as undermining the freedom of association and collective bargaining (De, 2017).
The Fair Work Commission also ordered the company to drop the disciplinary action initiated against the twenty four workers, which included Lachlan who was accused to have being indulged in inappropriate conduct where he called contract labourers grubs and maggots. Though, the company did not face any penalties as a result of the intimidation of workers and the company was also refusing in relenting on the union workforce lockout (De, 2017). The Fair Work Commission was successful in getting this long running industrial dispute coming to an end. As a result of the constant efforts taken by Fair Work Commission in mediating the entire matter, a new enterprise agreement was agreed to. This included the Oaky North workers agreeing to remove the union restrictions on the operation of the coal mine. After three long years of battle between the two sides, nearly 75% of miners voted in favour of the proposed enterprise agreement, which included both sides resorting to controversial and ugly behaviour tactics (Marin-Guzman, 2018).
Fair Work Commission paid heed to both the sides and condemned the wrong behaviour being undertaken by both the sides. Paula Spencer, the Commissioner of Fair Work Commission, after two days of hearing, ordered the company to suspend the lockout at the mine, which allowed the locked out workers to participate in return to work program. This was seen as a major turning point in the dispute between the mine owner Glencore and the CHMEU members. This decision was based on the request by CFMEU which covered a clause satisfying the company as well. The Commissioner ordered the miners to cast their vote on enterprise agreement which covered in principle support for main CFMEU members and Glencore after the hearing which took place of Fair Work (Gellie, 2018).
The suspension of lockout based on Fair Work Commission order was deemed as a temporary fix, and this led to the Commission putting efforts to negotiate the miners and CFMEU to vote in on an in principle agreement. After a lot of efforts the new enterprise agreement was signed. The Commission also decided on the matter of issuance of bargaining order. In deciding this, a balanced approach was taken by the Fair Work Commission, where it referred to the provisions of Fair Work Act, specifically section 228 of this legislation. After analysing the entire case, the decision was that the allegations letter which were issued and the other allegations, constituted as unfair conduct which undermined collective bargaining and freedom of association. The Commission was satisfied in application made by CFMEU for bargaining order. As the Commission could not directly engage in this enterprise agreement negotiations, they did state their availability for the parties where they wished to be engaged in further discussions required as an attempt towards ending the impasse which was present (FWC, 2017).
As had been rightly highlighted by Julian Teicher, the Fair Work Commission could not interfere in this matter much as this was not a dispute which could be classified as being harmful to public welfare or as affecting the national economy. This highlighted the weakness of the Fair Work Commission in such lawful circumstances where there was an impasse, which was incapable of being resolved through conciliation or mediation. Further, as the matter was not such widespread, despite it being a long running one, which impacted the economy or society, all Fair Work Commission could do was to wait it out. The best they could do was to express their desire of being of help in this situation, which they did. As the legal armour of active Fair Work Commission protected action was not available, refusing of invitation to return to work of the management could result in the membership of the CFMEU being put at risk (Stevens, 2018). So, despite being directly engaged, the threat of Fair Work Commission did result in furthering of the theme for which the Commission works.
The Fair Work Commission issued an order which resulted in the CFMEU and Glencore being directed to indulge in certain things. This order was passed in attempts of the two parties reaching a decision and towards reaching an end to this dispute. The suspension of industrial action by Fair Work Commission is seen as a motivator or the pushing factor which led to the final enterprise agreement being passed between the two parties (Smith, 2018). That being said, there is a need for the Fair Work Commission to be given certain powers, which could allow for it to intervene earlier in such instances.
In the previous segments, the entire dispute between the two parties had been detailed, which highlighted the apathetic situation in which the Fair Work Commission is. The Fair Work Commission cannot interfere in such protracted industrial disputes till they become a threat to public interest or hurts the nation’s economy. If this matter is closely analysed, one could see that the bargaining order was issued by the Fair Work Commission only after the application for the same was made by CFMEU, where they proved the failure of Glencore in meeting good faith bargaining requirements, followed by unfair or capricious conduct undermining collective bargaining and freedom of association. This case also clarified that the employees were not immune from disciplinary action being taken against them when they were in breach of policies of employer, even when they were engaged in union activity or were taking protected industrial action. But, as the Fair Work Commission held that there was a breach of provisions set out under 228 of Fair Work act, the bargaining order was issued (FWC, 2017).
Here, a need for the commission to be given powers to interfere/ intervene early on in such matters is highlighted, where they could resolve such matters early on, and to avoid such long standing delays in industrial disputes being solved. This needs to happen even when the matter is one which does not pose a threat to public interest or hurts the nation’s economy. Thus, it is requested to the President of the Fair Work Commission to consider such cases and bring a change in the actions which can be taken by the commission, particularly where there is a long standing dispute like the present one at hand.
Till the time such a holistic change is brought to the powers of Fair Work Commission in interfering in such matters, there is a need to bring in a mechanism which could allow for the interference of Fair Work Commission in the matters which impact thousands of people, even when it does not contribute as “impacting the public interest”. Where it becomes clear that there is a deadlock between the parties and that it is an industrial dispute, the Fair Work Commission needs to be given powers to resolve such matters.
In doing so, there is a need to bring out protective measures as well, where the Fair Work Commission is saved for such scenarios where even micro level industrial disputes demand the indulgence of Fair Work Commission for resolving the matter. There is a need to set out criteria, which would give the Fair Work Commission such interference power, based on the gravity of situation, as was present in the case highlighted here.
References
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Glencore. (2018) Glencore rejects CFMEU claims about Oaky North Coal Mine. [online] Available from: https://www.glencore.com.au/en/media-centre/News/180209_Statement_Glencore-rejects-CFMEU-claims-about-Oaky-North.pdf [Accessed 05/05/18]
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Smith, L. (2018) CFMEU, Glencore share thoughts on end to Oaky North lockout. [online] Available from: https://www.themorningbulletin.com.au/news/cfmeu-glencore-share-thoughts-on-end-to-oaky-north/3347395/ [Accessed 05/05/18]
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Terzon, E., and Robinson, P. (2018) Locked-out Glencore coal miners vow to continue 6-month picket line. [online] Available from: https://www.abc.net.au/news/2018-01-25/locked-out-coal-miners-vow-to-continue-6-month-blockade/9360558 [Accessed 05/05/18]
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