CFMEU delgate returns to work

15 July 2016
A CFMEU (Mining and Energy Division) delegate was reinstated by his employer, Glencore, following a Federal Court ruling that Glencore took adverse action against him.

In October 2014, Glencore, the new owners of former Rio Tinto mine, Clermont Coal, implemented a round of redundancies.  Mr Alan Scott, the Lodge President of the newly formed Clermont Coal CFMEU Lodge, was selected to be made redundant.

Maurice Blackburn sought an injunction against that decision, alleging he was selected because of, among other things, his union activities.  The Federal Court Judge, His Honour Justice Reeves heard the case on an expedited basis in March 2015, and recently issued his decision.  Reeves J found that one of the decision-makers had acted unlawfully.  A short time later, Alan walked back through the gates of the Clermont Mine.

Legal case for Alan Scott

The case involved an allegation of a breach of the adverse action provisions of the Fair Work Act, as well as claims for breach of enterprise agreement and breach of contract. 

General protections and findings

The Judge found that Alan had made a complaint or inquiry when he told the General Manager he was going to seek legal advice, and that seeking legal advice was a workplace right. 

He also found Alan engaged in industrial activities, including his organising and union activities, importantly, his role in representing his fellow workers.

The redundancy process

The redundancy process was arranged like so many others: a requisite number of redundancies to be made and a selection process used, including a scoring process by supervisors.  The workers were then ranked, and the result was supposed to produce those selected for redundancies.

One of the issues in this case was the identification of decision-maker.  As can often be the case in redundancy matters, the critical question is identifying the real reason for the dismissal.  Justice Reeves, importantly, confirmed he was required to consider the motivations of those whose “reasons had a material effect on the reasoning process that preceded” the ultimate decision to make Alan redundant. 

In doing so, His Honour considered the evidence of the General Manager, whose role was to sign the letter of redundancy (among other things) and the two people whose role was to give Alan scores against a set criteria.  Those two assessors had a “material effect” on the process, and therefore the decision.

Ultimately, His Honour found that one of the assessors, Mr Fleming, had concentrated upon Alan’s union activities, and not his performance as an employee when scoring him.  The Judge determined that Mr Fleming had been substantially and operatively motivated by Alan’s union activities, and that Clermont Coal could not discharge its onus of proving otherwise.  Clermont Coal had breached the Fair Work Act in making Alan redundant.

Outcome for Alan

Seeing a sacked union officer returning back to the workplace is one of those moments to celebrate.  This is what Alan did, on 6 October 2015. Alan achieved this with the unwavering support of the CFMEU (Mining and Energy Division)

The Court is yet to determine the penalty payable by Clermont.  But Alan’s return to work shows that when union delegates are made redundant, it is still possible to challenge their termination on grounds of adverse action.