Discuss About The Glencore Share Thoughts On End Oaky North.
Employment relationship refers to the legal link which is present between an employee and an employer (Bray et al., 2018). An important aspect of maintaining industrial dispute is to avoid the presence of industrial disputes. Industrial disputes basically denote the divergence between the employer and employee’s representatives, which includes the role of trade unions, in context of pay or working condition issues, and the result of which is industrial action being taken (Corthésy and Harris-Roper, 2014). Common tactics in cases of industrial actions include each party putting pressure on the other party and includes instances of lockouts and strikes on part of employers and employees respectively. Neither of the parties gets much by indulging in industrial disputes, as both parties lose revenue and their work balance (Shaw, McPhail and Ressia, 2018).
In Australia, the Fair Work Commission herein referred to as FWC, plays the role of assisting the employers and employees in resolving the disputes and this is deemed as their key function. This is based on the Fair Work Act, 2009 (Cth) where the FWC’s objective was deemed as forwarding assessable and effective process for resolving the grievances and disputes (Floyd et al., 2017). One of the longest industrial disputes in the nation was the one which took place between Oaky miners and Glencore, which is discussed in detail in the following segments, and also includes the role played by FWC in this matter.
The dispute which took place between the Oaky North coal miners and the main company Glencore was initiated as the collective agreement which was present between the two parties ended nearly three years back. The Oaky North coal miners were represented by Construction, Forestry, Mining and Energy Union, herein referred to as CFMEU, and they bargained for getting the company to agree on a new enterprise agreement. Both the parties made allegations against each other. Glencore made a number of attacks and brought in a new agreement where the right of employees to union representation, rostering and safety was stripped. The other demands included workers accepting wage cut and high payment for the accommodation. As per the workers, the company was attempting to eradicate the permanent workforce and wanted to make the entire workforce casual. The other claims included the choice of the company to apply the roster which they wanted to apply and to remove the union’s say in such matter. As a result of the company owning everything in the area, Glencore wanted to raise the accommodation costs as well. Owing to these reasons, the enterprise agreement suggested by Glencore was rejected by the miners and this in turn resulted in the work being stopped by the miners from May. Glencore did not back out from this behaviour of the workers and locked them out from July. The workers got constant notifications on the need of not getting back to work. In retaliation to this, the workers maintained a picket line just outside the mine, while the work in the mine was undertaken by the contractors (De, 2017).
Due to the instances of ferocity of picket line and also that of Scabby the Rat, a formal investigation was started by the Fair Work Ombudsman in the conduct being undertaken by the two parties, particularly that of the coal union (Allen and Landau, 2018). This also involved the seniors being informed regarding the entire case. The role played by CFMEU in this dispute was attempted to be understood by the Fair Work Ombudsman, particularly in sense of the picket line being organized and the workers being supported by being given supporting money (Stevens, 2018). The overview of the disputes clarifies that both the parties did something wrong, where the independent contractors were brought in by the company and the union paid subsidy wages to the workers who had been locked out just to continue with the picket line outside of the mine location. This led to Fair Work Commission getting externally involved towards attempting at getting a new enterprise agreement being created in between Glencore and Oaky miners (Terzon and Robinson, 2018).
Glencore, which owns Oaky North Coal Mine, refuted the allegations laid down against it by issuing a statement to media. As per Glencore, the members of CFMEU were misusing the provisions of Fair Work Act, and were portraying themselves as the victims, just to make this dispute as their national campaign. Glencore blamed CFMEU for being engaged in bully tactics against the workers who were still working at the coal mine. Glencore stated the stated the steps taken by it to get an enterprise agreement created before FWC, which would have allowed for the lock out to end long go, and how CFMEU walked away from the proposed enterprise agreement at the last moment, taking advantage of the Act’s evergreen nature (Glencore, 2018).
The company stated that the union decided to walk away even when it had agreed to this agreement and walked away moments before the handshake was to be made in this enterprise agreement. One of the officers of Glencore highlighted the lack of desire of CFMEU in closing the matter. Glencore clarified the manner in which the suggested enterprise agreement was favourable and against the various allegations. This agreement, as per the company, properly protected the workers’ rights as provided through the governing act. This agreement also allowed for maintenance of average annual wages, accommodation rent, proposed wage increase and also covered detailed of meals and services. The company highlighted CFMEU’s role in harassing, threatening and abusing the workers who were coming to work, particularly around the picket line, and in doing so a number of parties were being harmed by CFMEU, including the family of workers (Glencore, 2018).
As stated earlier, the Oaky miners were represented by their union CFMEU in this dispute and so the contentions of Oaky miners were put forth by the union. A lot of negotiations were undertaken between the two parties, but none of these got any favourable results for the two parties and as a result of this, the industrial dispute was stretched. As per the suggestions put forth by CFEMU, the enterprise agreement being proposed was declined on different grounds by the coal miners. This was on different grounds which included the dispute procedures, severance and retrenchment, casual hires, workplace representations and the ability of Glencore of changing the roster without consultations with the coal miners. As a result of this, the coal miners took a strong stand against the giant company and decided to fight against it as a combined force (Cook, 2018). The picket line made by the coal miners outside the Oaky mine was also justified by them, and they deemed it as a protest against the staff and contractual employees at Oaky, as they were performing the work of the company, while these miners were busy in advancing the CFMEU’s bargaining position and were taking the protected industrial action (FWC, 2017). It was claimed upon by the CFMEU that the allegations letters being issued and the surveillance conducted on them by Glencore was unfair conduct (Gahan, Pekarek and Nicholson, 2018)
In this matter, CFMEU negotiated on behalf of the miners, for getting the new agreement finalized, which was being hoped by Fair Work Australia, and which involved FWC showing its desire in solving the industrial dispute. The enterprise agreement recommended by FWC was retracted by the coal miners where they stated that when the company had not adopted the recommendations of the Fair Work, than they were also free to ignore the same. CFMEU reiterated the claims of the coal miners, where one of the workers was cited as saying that the company indulged in this dispute just to bring up the number of casual and contract workers, which effectively resulted in the job security of the coal miners being put at a risk. There were attempts of the company in making use of these casual/contractual workers as they could be substituted and supplied easily, which the company could not do in case of permanent labour force (Terzon and Robinson, 2018).
CFMEU agreed that this stretched industrial dispute was harmful for all the parties and attempted to resolve it. However, the substandard agreement being presented by Glencore made it difficult to do so. Central Queensland University employment and workplace relations teacher, Julian Teicher, highlighted the apathetic condition of FWC from being actively involved in this matter, which is discussed later on (Terzon and Robinson, 2018). Apart from making use of contractual workers, the coal miners highlighted a more serious issue, where Glencore was claimed to be undermining the safety standards in Oaky mine. The coal miners used to ensure that safety standards were enforced in the mine, but the same was not being done by labourers owing to lack of proper experience and training. Since the time the coal miners were locked out, the company had failed the dust limit standards applicable in the coal mining industry. There were also instances of Oaky mine being shut down twice, due to electrical fault resulting in fire, by the mining inspector. The protesting miners feared for more safety related disasters, and made reference to safety record of company, and the chances of safety going down at Oaky coal mine (De, 2017).
FWC could not directly involve itself in the matter directly, but did intervene where the powers given to it allowed so. FWC analysed the situation where the Glencore indulged in military styled tactics for intimidating union members, where Glencore deployed private security guards for the individual union members and their family members being intervened. As a result of the evidence presented in this context to the FWC, Glencore was ordered to stop this surveillance and also asked the company to withdraw the directive for banning workers and for allowing them to wear gear of union. FWC condemned the company undermining collective bargaining and freedom of association of the coal miners. FWC also interfered in the disciplinary action which Glencore had taken against 24 workers, particularly of employee Lachlan who as per the company had been involved in inappropriate conduct calling the contract labour force as maggots and grubs. However, FWC did not impose penalties on the company for workers being intimidating and even when refusal was made by the company on relenting the union workforce lockout issue (De, 2017).
FWC could only play the role of being a helper in this matter, where it came when it was called upon, and watched the dispute from sidelines, till a new enterprise agreement was agreed upon, between the parties. The enterprise agreement was attained this year after the coal miners agreed on removing the CFMEU restrictions on the coal mine operations. After a long battle between the two sides, nearly three quarter of the miners agreed upon the proposed agreement. This dispute saw the parties being involved in ugly and controversial tactics in proving themselves right, as is usually found in industrial dispute cases (Marin-Guzman, 2018).
FWC condemned the wrong behaviour equally of both sides, where the Commission of FWC ordered the company to end the lockout, thereby allowing the miners to take participation in return to work program. This is when the dispute starting the resolution stages, and this step was one which satisfied the needs of both the parties. FWC Commissioner also ordered the miners to make their vote on the new agreement as it covered the support for the key members of CFMEU and of the company (Gellie, 2018). The suspension of lockout was a temporary fix and FWC constantly showed its desire in pushing towards the new enterprise agreement. This led to the FWC deciding on the bargaining order being issued, pursuant to section 228 of the Fair Work Act, and took a balanced approach in doing so. FWC did uphold that the allegation letters contributed to unfair conduct for being indulged in undermining of the freedom of association and that of collective bargaining. FWC did so as it agreed with the application which the union had made in context of the bargaining order (FWC, 2017).
Julian Teicher highlighted the lack of legal base with the FWC to interfere in this matter due to the restrictions of public interest and national economy. In essence, FWC was restricted legally and was at an impasse as it could not solve this long running dispute through use of mediation or conciliation. All FWC could do was letting the parties know that it was available in case any of the parties needed help. CFMEU lacked the legal armour of protected action of FWC, due to which the union was put at risk of losing its membership, if it declined the return to work of miners (Stevens, 2018). FWC made attempts to resolve the matter whenever its help was cited. In this context, it effectively suspected the industrial action, which was deemed as a motivator leading to final enterprise agreement being passed in between the parties of this dispute (Smith, 2018).
The preceding section was a proof of FWC being restricted from getting involved in industrial disputes unless they cover the matters related to harm being caused to interest of general public, or have a negative impact over the economy of the nation. Due to these restrictions, FWC would not interfere much in the Oaky miners and Glencore dispute, resulting in the matter being stretched over a period of nearly three years. The dispute highlighted the lack of power with FWC to stop the unions and the companies from being indulged in unfair tactics, particularly when they are legal, but breach the good standards or the ethical norms. CFMEU instigated the workers in this case, whilst Glencore got involved in breach of good faith bargaining requirements, where it also indulged in unfair conduct which undermined the freedom of association and collective bargaining. Yet, this case is an example of workers being stopped from breaching the companies policies, whilst they were taking protected industrial action or were involved in any union activity. Based on the powers which FWC could implement in this case, it did its role, and issued the bargaining order, pursuant to section 228 of the governing act (FWC, 2017).
Based on this discussion, certain recommendations have been drawn for the FWC President. Some of these include:
References
Allen, D., and Landau, I. (2018) Major court and tribunal decisions in Australia in 2017. Journal of Industrial Relations, 60(3), pp. 397–413. DOI: 10.1177/0022185618759746
Bray, M., et al. (2018) Employment relations: Theory and practice. 4th ed. Sydney: McGraw-Hill Education (Australia).
Cook, T. (2018) Australian mining union isolates locked out Oaky North workers. [online] WSWS. Available from: https://www.wsws.org/en/articles/2018/02/03/oaky-f03.html [Accessed on: 07/05/18]
Corthésy, N. G., and Harris-Roper, C. A. (2014) Commonwealth Caribbean Employment and Labour Law. Oxon: Routledge.
De, P. (2017) ‘A fight we must not back down from’ – Oaky North coal miners take on Glencore. [online] Red Flag. Available from: https://redflag.org.au/index.php/node/6095 [Accessed on: 07/05/18]
Fair Work Act, 2009 (Cth)
Floyd, L., et al. (2017) Employment, Labour and Industrial Law in Australia. Melbourne, Victoria: Cambridge University Press.
FWC. (2017) Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd (B2017/640). [online] FWC. Available from: https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc5380.htm [Accessed on: 07/05/18]
Gahan, P., Pekarek, A., and Nicholson, D. (2018) Unions and collective bargaining in Australia in 2017. Journal of Industrial Relations, 60(3), pp. 337–357. DOI: 10.1177/0022185618759135
Gellie, C. (2018) 230 day strike ends as Oaky North miners agree to deal. [online] Townsville Bulletin. Available from: https://www.townsvillebulletin.com.au/news/230-day-strike-ends-as-oaky-north-miners-strike-deal/news-story/659e51bf3fe44994b20ff93024e80243 [Accessed on: 07/05/18]
Glencore. (2018) Glencore rejects CFMEU claims about Oaky North Coal Mine. [online] Glencore. Available from: https://www.glencore.com.au/en/media-centre/News/180209_Statement_Glencore-rejects-CFMEU-claims-about-Oaky-North.pdf [Accessed on: 07/05/18]
Marin-Guzman, D. (2018) Glencore dispute over as Oaky North workers vote to remove union restrictions. [online] AFR. Available from: https://www.afr.com/leadership/workplace/glencore-dispute-over-as-oaky-north-workers-vote-to-remove-union-restrictions-20180328-h0y2so+&cd=4&hl=en&ct=clnk&gl=in [Accessed on: 07/05/18]
Shaw, A., McPhail, R., and Ressia, S. (2018) Employment relations. 2nd ed. South Melbourne: Cengage Learning Australia.
Smith, L. (2018) CFMEU, Glencore share thoughts on end to Oaky North lockout. [online] The Morning Bulletin. Available from: https://www.themorningbulletin.com.au/news/cfmeu-glencore-share-thoughts-on-end-to-oaky-north/3347395/ [Accessed on: 07/05/18]
Stevens, M. (2018) Ombudsman targets CFMEU and Scabby the Rat in Oaky North fight. [online] AFR. Available from: https://www.afr.com/business/ombudsman-targets-cfmeu-and-scabby-the-rat-in-oaky-north-fight-20180204-h0tdur+&cd=3&hl=en&ct=clnk&gl=in [Accessed on: 07/05/18]
Terzon, E., and Robinson, P. (2018) Locked-out Glencore coal miners vow to continue 6-month picket line. [online] ABC News. Available from: https://www.abc.net.au/news/2018-01-25/locked-out-coal-miners-vow-to-continue-6-month-blockade/9360558 [Accessed on: 07/05/18]
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