Three workers made redundant by Downer EDI Mining last year have been reinstated following a decision by Fair Work Australia (FWA).
Justin Fisher, James Davis and Robert Shaw were represented by the CFMEU, who took up their case for unfair dismissal with FWA immediately following the axing of 106 jobs at the Boggabri coal mine in April 2013.
Workers and the union were outraged that although local workers had been sacked there were six foreign diesel fitters kept employed on 457 visas.
Fisher, Davis and Shaw were dismissed on 17 May 2013 as a part of the 106 workers who were retrenched as a result of operational decisions to decrease production, however two months later the mine began to increase production and rehire for the retrenched positions.
Despite applying for the positions with experience on site, Fisher, Davis and Shaw were not rehired.
CFMEU representation Mr K Endakott submitted to FWA that the workers were not informed of the basis for their selection for redundancy, and had not been given opportunity to respond or comment on the selection process.
Endakott also said that the mine had been short staffed since the redundancies occurred and that Downer had advertised for various positions, that the redundancy was not genuine and that failure to rehire the employees was unfair.
In his findings on the matter commissioner Cambridge said that the circumstances were quite unusual in that within a matter of about two months after the retrenchments, the operational requirements that gave rise to the dismissals of the applicants were essentially reversed.
The findings referred to the decision of Ulan Coal Mines Ltd v A. Honeysett and Ors: “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.”
Commissioner Cambridge found that the dismissals were unfair, and that the employees should be reinstated with remuneration for lost wages.
The amounts to be awarded for the workers’ loss of income were found to be $60,221 for 38 weeks, $40,437 for 22 weeks and $86,170 for 38 weeks, minus redundancy payments made upon the dismissals.