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Background

Discuss About The Construction Forestry Mining Energy Union.

In Australia, industrial disputes in context of workplaces are on rise since 2013, and these disputes results in higher number of working days lost and also high level of disputation. Industrial action is considered as predominant action in the manufacturing and construction industry. Industrial action can be conducted in different forms such as employees of the organization can conduct strike or impose bans on work. For replying this conduct of employees, employers can lockout their employees. Under this Fair Work Act, number of actions are defined which are considered as industrial action such as employees perform their task in such manner which is completely different from the normal performance, such practices are conducted by employees that prevents delay the work performance, etc (FWC, 2017).

In this report, President of the Fair Work Commission is informed about the FWC role in the industrial dispute occurred in case law Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd (B2017/640). Structure of this report includes background of the case, main issue on part of both the parties, FWC powers to intervene, and recommendations. Subsequently, brief conclusion is stated for the purpose of concluding this report.

In this case, Construction, Forestry, Mining and Energy Union (CFMEU) file application against the Oaky Creek Coal P/L (OCCPL) for seeking the bargaining order in context of workers working at the Oaky North Underground Coal Mine (Mine). Both the parties to the dispute indulged in the bargaining for replacing the enterprise agreement concluded in May 2015.

In 2017, members of the CMFEU initiate protected industrial action. After the vote rejection in lieu of proposed agreement, CMFEU revoke the notices given for the 15th and 16th July 2017 in terms of protected industrial action and workers reached at workplace to perform their work. After reaching at workplace, workers notice that they were not able to enter in the premises and after some time it was informed to them that they were not permitted to wear their CMFEU branded shirts and for entering into the premises. However, these shirts were permitted by the organization before that day.

On both 17th and 18th July, employees conduct their protected industrial action one more time. After that OCCPL issue alleged letters to almost 21 employees by making allegation on them that they breach the policy by engaging in conduct of the Picket line. OCCPL also issue letter to the other 5 employees for breaching the social media policy of the organization.

Issues in the dispute

On 20th July 2017, response action of the employer was conducted by the OCCPL, and in this they locked the members of the CFMEU (employees) outside the workplace, and continue the work of mine without these workers (FWC, 2017).

In this case, allegation was made by the CMFEU against the conduct of the OCCPL, and in this context CMFEU stated that OCCPL actions include different unfair and erratic action such as they issued allegation letters to their employees, surveillance the members of the CMFEU, and they prevent the members to wear branded CMFEU shirt at the workplace. All these actions restrict the freedom of association and collective bargaining.

The main issue in this case was whether the behavior of the OCCPL complained by the CMFEU fails to meet the good faith bargaining requirement in s. 228(1)(e) of the Act for the purpose of restricting the unfair conduct which destabilizes the freedom of association or collective bargaining.

Orders seek by CMFEU were opposed by the OCCPL on different grounds such as OCCPL stated that conduct of the individuals present at the picket line was abusive, threatening and intimidating, and it also includes official members of the CMFEU. OCCPL also stated that allegation letters issued by them does not demean the freedom of association and collective bargaining.

OCCPL further submit that as per the law employer possess the capacity to regulate and take disciplinary action in context of those conducts that occurs out of the workplace but such conduct has sufficient connection with the workplace. OCCPL derived some policies which are mainly designed for the purpose of ensuring that employees are treated with respect and dignity and must be free from abuse. Code of conduct of the Glecore’s include EEO and social media policy which were also apply on conduct of the workers out of the workplace (Glencore, 2018).

It was contended by the union that behavior of the OCCPL was unfair or capricious in nature, and it demeans the freedom of association or collective bargaining. As stated by the CMFEU, behavior of the OCCPL demeans the freedom of association and collective bargaining because:

  • Employees were the members of the CMFEU.
  • Employees were participating in the legal activity and such activity was organized and promoted by the CMFEU.
  • Employees were engaged in such conduct which was considered as the integral part of the membership of the CMFEU.

Employees were engaged in such conduct which was manly associated with the protected industrial action (CMFEU, 2018).

  • OCCPL must withdraw the direction which was issued by the company to the employees that employees were not allowed to wear the branded shirts of CMFEU, and they does not issue any such direction in the near future.
  • End the monitoring of the employees undertaken by the OCCPL outside the mine or any picket line.
  • OCCPL does not take any such step in context of investigation letters which were issued to the employees.
  • OCCPL does not take any disciplinary action against the employees in context of the investigation letters (ACTU, 2018).
  • OCCPL does not depend on the investigation letters.

FWC concluded that by issuing the allegation letters, by revoking the permission in context of branded shirt, and by monitoring the activities of the employees outside the workplace, OCCPL involved in such conduct which was capricious or unfair in nature and also demeans the freedom of association or collective bargaining. Following orders were issued by the commission in lieu of this dispute:

  • Direction issued by the OCCPL must be withdrawn which stated that employees were no longer permitted to wear cloths related to the CMFEU in and out of the mine, and they were not allowed to issue any such direction in the near future.
  • OCCPL does not undertake any monitoring of the employees except in some situations which include employees working under the mine, employees engaged in any picket, and protest any activity in the vicinity of the mine.
  • OCCPL does not take any further action in context of the allegation letters which were issued by the company to the employees.
  • OCCPL will not depend on the investigation letter in context of any matter.

FWC steps

Above stated orders are given on the basis of these reasons:

  • Conduct of the organization cause irreparable harm to the relationships of workplace at the mine and it also risk the health, safety and privacy of the employees engaged in lockout.
  • It demeans the collective bargaining and freedom of association (FWC, 2018).

FWC step in lieu of the restricting the monitoring of the employees outside the mine can be considered as one of the most effective decision of this case because these actions of the company are fall under the category of the unreasonable actions. This action of the company is unfair as it affects the privacy of the employees and also causes threat of monitoring on the employees at all time. One more step of the employee under which they restrict the military actions implemented by the company on those operations which conducted by anti-workers is also effective and reasonable. This decision of the commission not only protects the fundamental rights of the employees but also protect reasonableness of the situation.

FWC make order that OCCPL withdraw their disciplinary actions against the workers, as this decision of the FWC ensures equality and fairness and also prevents the undue advantage cause to the company. In other words, this action of the FWC not only protects the workers but also maintain the balance between the actions of both the parties of the dispute (Stevens, 2018).

Actions of the company fail to ensure the respect and dignity of legal provisions and use unfair tactics which demean collective bargaining and freedom of association. As private security guards are used by the company for the purpose of entrapping its workers is considered as demean activity because it threat the safety and privacy of the workers. In other words, this activity of the OCCPL harms the freedom of association and cause adequate effect on the private life of the workers.

After considering the above facts, it is right to say that actions taken by FWC are effective in nature because these actions ensure fairness and equality and also provide benefit to the employees (FWC, 2018).

In 2009, Labor’s Fair Work Act states the powers related to the FWC and with the help of these imposed powers, FWC ensure the reasonable bargaining system in terms of industrial dispute. There are number of areas in which powers of the FWC are increased through this legislation and this happened at the time when this Act is introduced by the labor government. In the present case, both the parties of the dispute do not conclude any agreement and this cause harm to both community and the economy.

FWC get the power to interfere in those disputes which are serious in nature and cause threat to the community and economy of the Australia. Industrial dispute is considered as most important weapon of the employers and from last few years this weapon is used by number of employers to execute enterprise agreement in their favor. However, there are number of employees also who use this weapon in their favor for any unfair purpose. Therefore, is necessary for the government to impose more power in favor of FWC so that they can deal with any such matter which cause harm to the population and economy (Caruana, 2017).

Effectiveness of decision

It must be noted that, many cases related to the bargaining dispute cause threat to the community and economy, in such cases FWC must get greater power to intervene and decide the matter as soon as possible. Presently, FWC does not have any power to intervene in those matters related to the bargaining dispute which have not reach to the agreement even after the protracted period. The basic reason behind this is that, in case decision taken by the FWC is enforced then such decision cannot be considered as the agreement between the parties because this is considered as the compulsory arbitration which is oppose to the enterprise agreement. Justice and equality are the two main approaches which are considered by the FWC while providing their decisions related to the bargaining dispute and for ensuring these two elements in the decision, it is important to entrust more power in the FWC. It is clear from the above facts, that more power to the FWC in these situations make the things easy and prevent adequate effect of such matters on the economy and community.

Conclusion:

Above stated facts clearly depicts that a major role was played by FWC in this case, FWC protects the community and the employees from unreasonable acts of the company. In this case, FWC also ensured the balance between the demands of both the parties. It is clear that the actions of the company fail to ensure the respect and dignity of legal provisions and use unfair tactics which demean collective bargaining and freedom of association. In this context, FWC should take such decision which is effective in nature because these actions ensure fairness and equality and also provide benefit to the employees. FWC also stated that conduct of the organization causes irreparable harm to the relationships of workplace at the mine and it also risks the health, safety and privacy of the employees engaged in lockout, and it demeans the collective bargaining and freedom of association.

FWC must get more power in contest of industrial disputes because and the basic reason behind this is ensuring justice and while providing their decisions related to the bargaining dispute. It is clear from the above facts, that more power to the FWC in these situations make the things easy and prevent adequate effect of such matters on the economy and community.

It is important for the government to make accurate changes in the legal provisions in context of bargaining dispute, but these changes must not be of such nature which ensures decision in the favor of any one party. In this context few recommendations are defined:

  • More power must be provided to FWC for intervene in the matters which are serious in nature, and also to resolve the procedural defects in the EP while making the application for approval. Power imposed on the FWC to deal with the problems result from the defects in procedure, because greater power to intervene help in resolving the matter earlier and easier. Procedural defects cause undue hardship to the parties to the dispute and also cause delay in the decision. Therefore, it is necessary to give power to FWC in context of procedural defects.
  • In context of dealing with the present problems, it is necessary for the FWC to apply the test related to enterprise agreement on complete group instead of the any individual person (Floyd, 2017).
  • Generally, enterprise agreements fail to ensure the balance of powers between the parties because of which such incidents happened on continuous basis. FWC must be entrusted with the power to review the enterprise agreement signed between the parties.
  • As stated above, greater power must be given to the FWC related to the bargaining dispute but some other powers are also there which must be given to the FWC such as power to review the enterprise agreement between those parties which fails to reach the agreement even after the expiry of the protracted period. It is important because delay in conclusion of the enterprise agreement not only affects the community but also the economy of the country.
  • FWC must ensure productivity and equity while resolving any bargaining dispute between the parties. FWC can ensure fairness and equity by implementing collective bargaining which is also supported by the responsibility of the good faith and regulations related to the industrial action.

References:

Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd (B2017/640).

ACTU, (2018). Oaky North workers mark 6 months locked out. Retrieved on 5th May 2018 from: https://www.actu.org.au/actu-media/media-releases/2018/oaky-north-workers-mark-6-months-locked-out.

CFMEU, (2018). Fwc Orders Glencore To Cease Surveillance Of Its Employees, Withdraw Displinary Action. Retrieved on 5th May 2018 from: https://me.cfmeu.org.au/news/fwc-orders-glencore-cease-surveillance-its-employees-withdraw-displinary-action.

Caruana, L. (2017). Oaky North industrial strife continues. Retrieved on 5th May 2018 from: https://www.miningmonthly.com/company-activity/international-coal-news/1308720/oaky-north-industrial-strife-continues.

Fair Work Commission (FWC) (2017) FWC 5380; Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd (B2017/640).

Floyd, L. Fair work laws: Good faith bargaining, union right of entry and the legal notion of "responsible unionism". Retrieved on 5th May 2018 from: https://www.tradeunionroyalcommission.gov.au/Submissions/Documents/ResponsesToIssuesPaper/FloydFairWorkLawsGoodFaithBargainingUnionRightOfEntryAndTheLegalNotionOfResponsibleUnionism.PDF.

FWC, (2017). Industrial Action. Retrieved on 5th May 2018 from: https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/industrial-action#commission.

FWC, (2018). Decision. Retrieved on 5th May 2018 from: https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc5380.htm.

FWC, (2018). Summer 2018: Quarterly practitioner update. Retrieved on 5th May 2018 from: https://www.fwc.gov.au/resources/quarterly-practitioner-updates/summer-2018-quarterly-practitioner-update.

Glencore, (2018). Glencore rejects CFMEU claims about Oaky North Coal Mine. Retrieved on 5th May 2018 from: https://www.glencore.com.au/en/media-centre/News/180209_Statement_Glencore-rejects-CFMEU-claims-about-Oaky-North.pdf.

Stevens, M. (2017) Ballot defeat fails to dent Glencore’s Oaky North resolve. Australian Financial Review. Retrieved on 5th May 2018 from: www.afr.com/business/glencore-deadlock-drifting-to-dead-end-20171031-gzbyxk
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