While the times have certainly changed at Ulan, which will have two longwalls operating when production at Ulan West starts up in 2014, Xstrata axed about 122 positions, mostly contractors, at the mine in August 2009.
Fourteen permanent mine workers were retrenched, with the Construction Forestry Mining and Energy Union launching unfair dismissal claims for 10 of the affected workers.
About four months ago the workplace relations tribunal found that six of the 10 Ulan miners who lost their jobs were not genuine redundancies under the Fair Work Act.
This decision was made chiefly because there were options for redeployment at Xstrata’s Baal Bone longwall mine in the state, even though it is about 100 kilometres away from the Ulan mine.
The four workers who were made genuinely redundant were deemed to not be in a situation to be reasonably deployed due to their personal circumstances and preferences.
Commissioner Frank Raffaelli also noted one was “incapacitated due to injury”
But on Friday Fair Work Australia was forced to revisit Raffaelli’s decision as the Construction Forestry Mining and Energy Union appealed that all 10 workers were unfairly dismissed, while Xstrata appealed against the ruling of the six who were found to be unfairly dismissed.
In a full bench decision consisting of a different commissioner, along with the president and the deputy president of Fair Work Australia, the appeals were dismissed.
Fair Work Australia president Justice Geoffrey Giudice said an essential part of the concept of redeployment was that the redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment.
“Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining,” he said.
“Other considerations may be relevant such as the location of the job and the remuneration attaching to it.
“Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy.
“This is because it would have been reasonable to redeploy the employee into the vacancy.”
While most coal producers use subsidiary companies to manage each of their mines, this umbrella structure does not provide any defence under the FWA laws concerning redeployment.
“Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant,” Giudice said.
The first Fair Work Australia decision over the Ulan matters found that all 10 miners were unfairly dismissed.
