Discuss about the Employee Participation in Grievance Collective.
Labour unions have been in existence in Australia since the early 19th century to conciliate and mediate industrial conflict (Bradley Bowden, 2011). Under the federal work Act, employees are allowed to apply to the Fair work commission (FWC), which acts as the country’s employment tribunal to oversee negotiations between unions and employers (“Unfair dismissal”, 2018). Typically, employees have to be members of a trade union, which negotiates on their behalf. Given the role of the labour union, conflict is bound to arise when employees are treated unfairly as in the recent dispute between Oaky Creek Coal Pty Ltd and the Construction, Forestry, Mining, and Energy Union.
In the current industrial dispute between Oaky Creek Coal Pty Ltd, a subsidiary of Glencore ltd, and the Construction, Forestry, Mining, and Energy Union, the FWC worked to try and resolve the conflict. The period that was taken to resolve the conflict, however, raises the question as to whether the fair work commission is efficient enough in settling industrial disputes.
This report is addressed to the president of the Fair work commission giving an account of the role the commission played in settling the 230 days long dispute. It will evaluate the effectiveness of the Commission in this dispute and make recommendations as to whether or not this body should have greater powers to intervene in this type of dispute.
Following a history of poor performance and high employee turn over due to poor working conditions in the early 90’s, Oaky creeks agreed to a negotiation to change their enterprise agreement for better working conditions (“99/00044 Going underground—evolution of Oaky Creek mining complex”, 1999). During the negotiations in 1997, the company was accused of trying to get rid on the union. The company defended itself by stating that they embraced the union participation as a progressive means to improve its systems (Nicholls & Lynch, 1997). Finally an agreement was reached which let to massive increase of productivity in the years that followed. However in 2008, the CFMEU union was forced to question the procedure used in retrenchment of mass employees by the mining company (Advocate, 2009). Oaky creek laid off 190 contractors and 40 full time staff after suspending one of its operations in an underground mine. CFMEU challenged their decision and through the Fair Work Commission seeking transparent procedure in future processes of determining retrenchments. The terms of agreement proposed by the union were that future redundancies were to be voluntary. The package offered to the retrenched staff was to be adequate and the union was to be let known of the lay- off to gauge whether the process was fair. Some other concerns of the union were that, during lay-off the mining company might decide to target the elderly and injured (Advocate, 2009).
The most recent case of dispute between Oaky Creek Coal Pty Ltd and the Construction, Forestry, Mining and Energy Union started in June 2017 and has just been concluded in the month of February 2018. At the Oaky North mines , CFMEU and the mining company had been working to establish a new enterprise following the expiration of the last one in 2015. Very little progress was made in the negotiations leading to the industrial dispute. The new enterprise agreement tabled by Glencore’s Oaky north mine was not favorable to the employees. It would strip them away of 50% of the working conditions that they previously enjoyed. All the miners wanted were to retain their previous enterprise agreement. Instead, Glencore proceeded on to use contractors and other casual laborers as temporary replacements for the locked out employees. This was of course not taken kindly by the union and the employees themselves. In a statement to the press, Glencore’s spokeswoman explained that they had expressed their legal right to continue their business while at the same time respected the workforce’s rights for protection during negotiations (Mesner, 2018). Even ballots were cast 99% of the workforce did not vote for the new enterprise agreements. A series of industrial action strikes followed, with thousands of members from other Glencore operations showing up in support.
Annual reports of the company showed an increase in revenue to US$ 3.1 Billion in the last quarter of 2017 from the US$ 1.77 Billion reported in the third quarter (“2017 Annual Report of Glencore plc (“Glencore” or the “Company”)”, 2018). Despite Glencore’s massive revenue earnings, it shocked many that the company would engage in such unscrupulous policies. To add more salt to injury, Glencore is one of the largest Multinational Companies in the country. The company’s refusal to negotiate to end a seven- month industrial strike also showed lack of diplomacy. Further, the company lack of transparency and interest in solving issues with its stakeholders. Over and above that, Oaky North mine displayed a dictatorial tendency in issuing the lockout of its workforce. This was a move that illustrated how expendable the company felt the employees were. Lockouts are counter progressive movements by the employer meant to gain advantage in negotiations of disputes and hinder unions (Cogley, 2011). Three local MPs also intervened further between CFMEU and Glencore to end the Lockout. While the intervention was constructive and successful, this portrayed the Fair Work Commission as inefficient in its role to solve such disputes. Ms Laundry, Federal Member for Capricornia, stated that the dispute needed not have taken so long since the only tool that the employer had was the lockout (Smith, 2018). This to her was a clear shortcoming for Fair Work commission and it possessed a threat of the same happening in the future. The acts by Glencore exposed the cracks in Australia’s industrial relationship system thus promulgating CFMEU to look towards pursing more changes in the system.
The fair work commission is one of two key Australian National organisations that offer a tribunal to help employees and employers maintain fair and productive work places (Thornthwaite & Sheldon, 2011). It is an independent body with a key rule of ‘bargaining in good faith. This basically explains that all parties have to be fair. The commissions fulfills a variety of functions including:
It is important to note that the fair Work commission’s role is not to check that the minimum wages, modern awards and entitlements are given to employees. The Fair work Ombudsman however give’s advice on what wages, modern agreement and entitlements one is eligible to get. As soon as the employees launch an application then the fair work commission commences its function. The complainant must fill out a form ensuring that they follow the rules outline in the fair commission rules 2013 (Fair Work Commission Rules 2013, 2013). On receiving the application will give directions on how to deal with the application. It may also forward the application to a professional facilitator to resolve the dispute in an informal setting. The applicants and other requisite persons are the expected to appear before the commission. Submissions and other evidences are then presented to the tribunal. The commission will then conduct conferences, hold hearing and finally making a ruling followed by recommendations.
Industrial relations rules in Australia are made through a number of processes (Dunau, 2011). Fist off is through the statutory regulations whereby the state dictates substantive legal right of employees. Secondly, there is the delegation of regulations to independent tribunals such as the Fair work commission. Here, collective voices, usually through organisations such as trade unions, submit and participate in the tribunals for a dispute resolution process. Thirdly, contingent to the model of the enterprise in question, employers and employees agree on the terms of employment relationship. The fourth process occurs when an employee individually agrees to the terms of employment with their employer. Lastly, the management of a firm may choose to make rules of employment without engaging the employees or may consult the workforce but ultimately the decision lies with them.
Succeeding the negotiations that took place for almost eight months, the Fair Work Commission finally suspended the longstanding Lockout of Oaky North miners (Smith, 2018). A two-day hearing was held at Brisbane before the commissioner made the decision for the lockout to be suspended (Smith, 2018). FWC issued an order govern how things would take place after miners went back to work. More to this, the commission suspended all further industrial action besides terminating Glencore’s application for the enterprise agreement. The miners resumed work as further negotiations continued to take place. Achieving the objective to resolve industrial dilemma is a costly and difficult affair. Glencore vowed to establish better communication channels to avoid such a situation that cost the company its reputation and revenue. Glencore vowed to not lay off any worker but instead re-integrate the workers back into the workforce (Smith, 2018). The resilience of the workers paid off at the end since they were allowed to maintain a great number of their terms and conditions that were in the previous enterprise agreement.
Some scholar argue that unions can be disruptive to firms and economies.in situations where the labour unions are very powerful, investors may be discouraged in setting up business. Therefore where employment would have been created there will be none. It is also argued that unions only cater for the needs of the member while those who are non-member are ignore. During long periods of strikes, this could lead to massive losses of revenue for a company leading to eventual closure in a case where they are unable to recover.
Labour unions in Australia have long played an essential role forwarding concerns of social injustice and the standards of living of employees. Unfortunately, there seems to be a decline in the Australian Union Membership (Australian Bureau of Statistics, 2017). The unions are slowly losing relevance due to their ineffectiveness in delivering their intended purpose. Unions should welcome changes since the world is changing each. Unions, as well as bodies overseeing the works of unions in crafting enterprise agreements, should provide services relevant to the employees and employers as well in the changing world. The Fair Works Commission should decentralize its operations so as to deliver tailor-made solutions that provide faster resolutions of disputes. Additionally, the fair works commission should have more power to intervene in dispute matters that are not limited to previous labor government policies. Evidently, in these negotiations between Glencore and Construction, Forestry, Mining and Energy Union FWC commission lacked enough legislation to end the dispute. The commission should have been able to end the stand-off without intervention from ministers.
Conclusion
Workers come together to labour unions for a common purpose; that is, to achieve collective bargain that could not be achieved alone. In the case of Oaky North Miners, the Construction, Forestry, Mining, and Energy Union (CFMEU) has proved effective in protection of employees against unfair labour practices. In the long run, the employees got what they wanted and their jobs back as well. The Fair Works Commission offers a voice and representation at work. It is a key element- though proven to have glitches in operation- in providing a platform for fair negotiations between disputing parties.
References
Dunau, B. (2011). Employee Participation in the Grievance Aspect of Collective Bargaining. Columbia Law Review, 50(6), 731. https://dx.doi.org/10.2307/1118653
Thornthwaite, L., & Sheldon, P. (2011). Fair Work Australia: Employer Association Policies, Industrial Law and the Changing Role of the Tribunal. Journal Of Industrial Relations, 53(5), 616-631. https://dx.doi.org/10.1177/0022185611419611
2017 Annual Report of Glencore plc (“Glencore” or the “Company”). (2018). Glencore. Retrieved 26 April 2018, from https://www.glencore.com/index/media-and-insights/news/2017-Annual-Report-of-Glencore-plc—Glencore–or-the–Company–
Advocate, T. (2009). February 2009. Issuu. Retrieved 26 April 2018, from https://issuu.com/miningadvocate/docs/february-2009
Australian Bureau of Statistics. (2017). 6102.0.55.001 Labour Statistics: Concepts, Sources and Methods,. CANBERRA: Australian Bureau of Statistics.
Bradley Bowden. (2011). The Rise and Decline of Australian Unionism: A History of Industrial Labour from the 1820s to 2010. Labour History, (100), 51. https://dx.doi.org/10.5263/labourhistory.100.0051
Cogley, T. (2011). The law of strikes, lockouts, and labor organizations (pp. 5-7). Washington, D.C.: W.H. Lowdermilk.
Fair Work Commission Rules 2013. (2013). Legislation.gov.au. Retrieved 26 April 2018, from https://www.legislation.gov.au/Details/F2017C00054
Mesner, K. (2018). Mining company says union’s behaviour is shameful. Rockhampton Morning Bulletin. Retrieved 26 April 2018, from https://www.themorningbulletin.com.au/news/mining-company-says-unions-behaviour-is-shameful/3185502/
Nicholls, B., & Lynch, P. (2011). Oaky Creek Coal – Improving Productivity. Research Online. Retrieved 26 April 2018, from https://ro.uow.edu.au/coal/281/
Smith, L. (2018). Glencore and CFMEU glad to see end of North Oaky dispute. Rockhampton Morning Bulletin. Retrieved 26 April 2018, from https://www.themorningbulletin.com.au/news/glencore-and-cfmeu-glad-to-see-end-of-north-oaky-d/3373710/
Smith, L. (2018). Oaky North’s lockout dispute over, for now. Mackay Daily Mercury. Retrieved 26 April 2018, from https://www.dailymercury.com.au/news/oaky-norths-lockout-dispute-over-for-now/3346818/
Unfair dismissal. (2018). FWC Main Site. Retrieved 26 April 2018, from https://www.fwc.gov.au/termination-of-employment/unfair-dismissal
Ackers P. (2014) ‘Rethinking the employment relationship: a neo-pluralist critique of British industrial relations orthodoxy’ The International Journal of Human Resource Management, 25(18): pp. 2608-2625.
Befort SF and Budd JW. (2009) Invisible hands, invisible objectives: bringing workplace law and public policy into focus, Stanford, CA: Stanford Economics and Finance. Bray M and Stewart A. (2013a) ‘From the Arbitration System to the Fair Work Act: The Changing Approach in Australia to Voice and Representation at Work’ Adelaide Law Review, 34(pp. 21.
Bray M and Stewart A. (2013b) ‘What is distinctive about the Fair Work regime?’ Australian Journal of Labour Law, 26(1): pp. 20-49.
Bukarica A and Dallas A. (2012) Good Faith Bargaining Under the Fair Work Act 2009: Lessons from the Collective Bargaining Experience in Canada and New Zealand, Sydney: Federation Press
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