Fair Work Australia ruling set for mining industry challenge

A mining association has reported its members have dug deep to support a fund to contest the rulings of Fair Work Australia, raising the prospect of a legal challenge to the tribunal’s recent ruling that unions can undertake strike action in a non-bargaining period without gaining majority support.

The Australian Mines and Metals Association says the “IR Foundation Fund” will provide financial support for it to “intervene and protect the interests of resource industry employers in a growing number of Fair Work Australia determinations that are adverse to employers’ interests.”

The resource industry employer group has reported a “positive” response from its members.

The fund will be overseen by AMMA’s workplace advisory group, which will “monitor and organise industry intervention and/or court appeals as appropriate.” It will work with other industry groups where appropriate, it says.

Association spokesperson Minna Knight this morning said the fund was agreed upon months ago.

” … there have been an array of FWA determinations, and we suspect more to come, where several decisions could best be described as creative, some may say ‘activist’ determinations that are not in the interests of employers,” she said.

“We’ve seen a significant increase in the number of strike ballot orders being handed out unions, an escalation in the union right of entry.”

“A large portion of our members will face the prospect of a bargaining round involving unions for the first time in recent memory as AWAs and/or collective non-union agreements expire.”

“In this environment, AMMA will not be silenced nor stand idly by and watch proceedings that have the potential to adversely impact on the workplace relations environment of a business sector so critical to this country’s wellbeing.”  

But Macpherson + Kelly principal Andrew Douglas said while the campaign might be good news for lawyers and galvanise unions, it was unlikely to produce better outcomes and is likely prompted by the wider concerns of the resources industry.

“There’s no doubt that the Fair Work Act has loosened up union action, and no money of money will change that,” Douglas said.

“It will have little effect, besides opening up an industrial relations battleground.”

Fair Work Australia last week ruled that unions can take industrial action in non-bargaining periods and where majority workplace support for industrial action has yet to be determined.

The case related to a dispute at waste collection company JJ Richards, where directors refused to engage with a bargaining request by the Transport Workers Union. The tribunal’s full bench found the union had genuinely sought to negotiate, and therefore had the right to proceed to strikes.

“As we indicated earlier, there is nothing in the legislative provisions to suggest that a bargaining representative should not be permitted to organise protected industrial action to persuade an employer to agree to bargain,” the full bench of FWA said yesterday.

“Nor is there anything to suggest that a union, which is genuinely trying to reach an agreement for its members, but cannot get the employer to agree to bargain, should not be able to organise protected action unless it has the support of the majority of employees.”

The Australia Industry Group described the decision as “disappointing”, and the Australian Chamber of Commerce and Industry said industrial action must be an absolute last-minute option, but the Government and unions welcomed the decision.