Attempt to challenge redundancies fails again

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Attempt to challenge redundancies fails again

Miners at Mt Thorley mine have engaged in long and detailed litigation over redundancies put into effect by the employer in November 1997. The workers claimed that the redundancies were unnecessary.

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Miners at Mt Thorley mine have engaged in long and detailed litigation over redundancies put into effect by the employer in November 1997. The workers claimed that the redundancies were unnecessary.

One of the forums where these claims were pursued was the NSW Industrial Relations Commission. In the latest phase in the saga, a Full Bench of the NSW IRC rejected arguments built on the alleged unfair variation of the contracts of employments of the miners.

The appellants had contended strongly before Justice Schmidt of the NSW IRC that the alleged problems were exaggerated by the respondent and that the Mine's productivity had improved and that retrenchments were not necessary.

It was also part of the appellants' case that a number of specific assurances had been given by the respondent to employees during the course of the negotiations for the 1996 EA directed at the question of job security.

The appellants contended that on the basis of unfair representations and conduct of the respondent they were invited to forego industrial rights well prior to the termination of their employment. The respondent took the view that the circumstances envisaged in the EA existed and that redundancies were warranted.

Summary of findings

The Full Bench of the NSW IRC stated:

'We summarise our main findings as follows:

  • That neither the Award nor the EA had been incorporated or imported into the appellants' employment contracts with the respondent.
  • That neither cl 24 of the Award nor a system of seniority based on length of service at the Mine and in particular classifications was part of the appellants' contracts of employment and other arrangements.
  • That cl 37 of the EA did not form part of the appellants' contracts of employment or arrangements or collateral arrangements.
  • That Justice Schmidtwas correct in declining to entertain the appellants' claim to vary the appellants' contracts of employment or arrangements or collateral arrangements to include a system of seniority and assurances about job security.
  • That there were no arrangements or collateral arrangements between the appellants and the respondent within the meaning of s106 of the NSW Industrial Relations Act 1996 capable of being varied to incorporate the alternative claims identified in the appellants' closing submissions before Justice Schmidt. The claim for an order in par A2 of the summonses is, therefore, not available to the appellants.
  • That the appellants did not establish on the balance of probabilities the respondent, from the outset, had a secret strategy to downsize the workforce and that this strategy was deliberately kept from the appellants at the time the EA was negotiated.
  • That the evidence does not support a finding that the respondent's conduct was unfair in relation to the giving of assurances regarding job security at the time the EA was submitted for approval by the appellants in September 1996.
  • That an order wholly voiding the employment contracts, especially from commencement, is completely inconsistent with a case the central element of which was that employments contracts were unfair because the respondent breached terms relating to seniority and job security.'

The appeal failed.

See: Burgess and Ors v Mount Thorley Operations Pty Ltd [2003] NSWIRComm 432 - Wright J President; Walton J Vice-President; Boland J - 12 December 2003.

Related cases

Mt Thorley miners have figured in a number of cases over recent years, including:

NSW IRC rejects challenge to unfair contracts jurisdiction.

Mt Thorley mine workers lose stay on case, costs.

 

 

   

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