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CFMEU bid to stymie Rio Tinto non-union strategy
The CFMEU's mining and energy division has launched innovative legal proceedings in the Federal Court in a bid to undo Rio Tinto's non-union industrial strategy in the Pilbara.
The union hopes to overturn a five-year employee collective agreement it believes could enable Rio Tinto to limit its exposure to the Fair Work Act's good faith bargaining regime.
At the heart of the case is an employee collective agreement made in mid-2008 between a small group of employees and Pilbara Iron Company (Services) Pty Ltd (PICS), a Rio Tinto subsidiary that employs a growing proportion of the company's Pilbara workforce (see Related Article).
The union believes less than 30 of Rio Tinto's 1200-odd Pilbara employees voted up the deal.
But despite the limited initial numbers, its coverage will gradually extend across the entire workforce, as new employees - and existing employees coming off expired AWAs - are moved onto the agreement.
That means the company could avoid making an industrial agreement for its Pilbara workforce under the new IR laws – and the associated obligation to negotiate with the union - until well into 2013.
The company's effort to have a small, carefully-defined group of employees approve the agreement could be its undoing, however.
It restricted the pool of employees who voted on the deal by confining its scope to workers employed on or after July 28, 2008, with the result that only those employees hired between that date and the ballot, which was held sometime in the following fortnight, were eligible to vote.
Under s327 of the Act, an employer can make an employee collective agreement with "persons employed at the time in a single business (or part of a single business)" who will be covered by the agreement.
The union plans to argue in the Federal Court that a "temporally distinct" – as opposed to geographically or organisationally distinct – grouping cannot constitute a single business or part of a single business.
It follows that, by defining the scope of the PICS agreement according to the date on which employees were employed – "on or after 28 July 2008" - the company did not make an agreement with employees of a single business or part of a single business and so did not comply with s327.
The Court should therefore declare the agreement void on the ground that it was not approved in accordance with s340(2) and order PICS to pay penalties for breaching the Act, the union will argue.
CFMEU mining and energy division general secretary Andrew Vickers says the case is the first of its kind in Australia and, although legally focused on the Workplace Relations Act, has important ramifications for the reach of Labor's new IR regime.
The union's WA district secretary, Gary Wood, says the case could be crucial in ensuring industrial fairness for hundreds of workers in the State's North-West..
The case is being run by the CFMEU's internal legal team, led by national legal officer Alex Bukarica, Slater and Gordon and Sydney industrial barrister Claire Howell.
An initial mention in the case, which is likely to run for the better part of this year, is set down for early July in the Federal Court in Sydney.
Original article: Workplace Express – www.workplaceexpress.com.au
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