August 23, 2022
Former permanent employees of Chandler at the Mount Arthur open cut coal mine in the Hunter Valley are celebrating a win after Chandler tried to get out of paying redundancies by claiming they helped them into new jobs.
In September 2021, Chandler lost the contract to Programmed to provide labour hire employees to Mt Arthur. Chandler had previously held the contract to provide labour hire employees to Mt Arthur for about seven years and employed hundreds of workers to fulfil the contractual requirements.
As a result of unsuccessfully tendering for the contract, Chandler terminated the employment of its employees working at the mine, by way of redundancy.
Prior to Chandler’s contract winding up, the majority of employees successfully obtained employment at Mt Arthur with Programmed. In order to gain employment with Programmed, the employees attended information sessions, applied for positions online, provided documentation to support their applications, and attended interviews and medicals.
Chandler took the unusual step of applying to the Fair Work Commission for an order to reduce the redundancy pay it was required to pay its permanent employees to zero, on the basis it had obtained other acceptable employment for its employees with Programmed.
The Fair Work Act provides the Fair Work Commission with the power to reduce redundancy pay an employee is entitled to be paid, if the employer obtained other acceptable employment for the employee, or the employer cannot pay the amount.
Our Northern Mining and NSW Energy District challenged Chandler’s application and seven of our members gave evidence to the Commission regarding the steps they took to be considered for a position with Programmed, their positions with Chandler, and whether they were successful in their job applications.
As a result of our members’ evidence, the Commission concluded that the evidence did not support a finding that actions by Chandler were the primary factor in the affected workers obtaining employment with Programmed. In the case of one our members, the Commission found that the work obtained was not acceptable under the terms of the Act due to a change from day work with Chandler to shift work with Programmed.
Based on the evidence, Chandler’s application to reduce redundancy entitlements to zero under provisions in the Fair Work Act was dismissed.
Although Chandler are required to pay its workers redundancy pay, it has since filed an appeal in an attempt to have the initial decision overturned. To date, the appeal has not been determined.
If the original decision in workers’ favour is upheld, it may pave the way for the Mining and Energy Union to pursue entitlements for a larger group of former Chandler employees under the terms of the Enterprise Agreement.
This is an important case for defending the rights of labour hire mineworkers, who are subjected to the constant uncertainty of mine operators chopping and changing contract labour suppliers. Providing for workers’ legal entitlements should be built into the costings of labour hire companies.