But the destructively self-defeating nature of the CFMEU organised strike was made plain to union and miner last Friday in a commission decision that allowed the Anglo redundancy program to proceed.

Two-way risks

In rejecting the union's application to block the sackings on the basis that they triggered adverse action protections, Deputy President Ingrid Asbury assessed that "sustained and ongoing industrial action involves risks on both sides".

"From the employer's perspective, those risks include that loss and disruption associated with industrial action will outweigh the cost of conceding its bargaining position. For employees, the risks include that protected industrial action will cause damage to the employer which will have a permanent or long-term impact or an impact that results in a review of its operational requirements and a consequential restructuring.

"Where such review and restructuring is genuine and based on valid business grounds, it will not be capricious or unfair conduct," she found.

"It is not unfair for an employer suffering loss and damage as a result of employees taking protected industrial action to decide on legitimate business grounds to restructure its business to manage or offset that loss and damage, and to decide to make employees redundant in the process. The fact that protected industrial action triggers loss and damage, and related restructuring and job losses, does not necessitate a finding that the employer has breached good faith bargaining obligations or dismissed employees because they are taking or propose to take protected industrial action," DP Asbury further observed in what is a very powerful and important decision.

"The fact that protected industrial action triggers loss and damage, and related restructuring and job losses, does not necessitate a finding that the employer has breached good faith bargaining obligations or dismissed employees because they are taking or propose to take protected industrial action," Asbury asserted.

Free to experiment


The background here is as fascinating as it is sad for the 82 workers who will lose their jobs.

While more than 140 miners have routinely picketed the Anglo operation outside the coal town of Middlemount, mining has continued at the German Creek open cut. To make that happen, Anglo has relied on existing staff and workers who have routinely crossed picket lines and a deployment of new contractors. It has also relied on a change of mine plan that has seen massive draglines used to remove overburden from the coal seams.

This task has historically been performed by smaller shovels and a fleet of trucks working in carefully planned co-operation with a following dragline.

The exclusive use of drag lines for overburden removal was an option often considered but never taken, Anglo management told the Fair Work Commission. But because the drivers of those pieces of equipment have been on strike, Anglo has been freed to experiment with new ways of getting the job done with fewer people.

Not only have the results of this experiment been compelling, but the change in the mine plan means that the shovel fleet has now fallen so far behind where the dragline is that it would not be practical to deploy them again for months even if the striking workers returned tomorrow.

As DP Asbury observed, at an operational and planning level, the situation has reached the point of "no return".

In delivering Friday's decision Asbury offered an insightful narrative of the union's dilemma.

The strike has seen the company "focus its available labour resources on the operation of the dragline," she started. "As a result, the shovel fell behind the dragline and reached a point of no return, where it could not operate for several months and was required to be parked up for at least that period.


"In those circumstances, Capcoal Management revisited an earlier plan where it had considered parking up the shovel on a temporary basis, and decided to implement this outcome on a permanent basis. I am satisfied that the decision was taken for legitimate and valid operational reasons, including a significant cost saving to the company in the order of $40 million.

"The result of deciding to park up the shovel permanently was that there was a surplus of employees and it was decided to address that surplus by making a number of positions redundant, with the result that some employees would be dismissed.

"The fact that the lack of operators at the relevant time was due to them taking protected industrial action, does not lead to a conclusion ... the dismissal of some of those operators … is to be implemented because they were taking industrial action.

"The proposal and the decision to implement it is not capricious. To the contrary, the evidence establishes that … the proposal to park the shovel and restructure the workforce because of significant commercial advantages for the mine, including a saving of over $40 million over three years," DP Asbury reported.

Not all Anglo's way

It is worth noting that not all went Anglo's way in the Asbury decision. The DP appeared to invite union contest over one very particular part of the process in train. Asbury noted that there was evidence Anglo planned to retain some of the contractors who have been hired "for the purposes of backfilling" jobs left temporarily vacant by striking workers. She made it plain that this would be an inadvisable course of action and one that would leave Anglo vulnerable to any future adverse action claim.

Asbury observed that discrimination in favour of recent casuals or labour hire workers risked undermining collective bargaining because it likely reduced the number of CFMEU members who may otherwise have remained in employment.

"I make these points to give Capcoal (Anglo) the opportunity to consider its position … and in an attempt to avoid further agitation of these matters," she said.


Not surprisingly, the union says it will appeal the Asbury decision and that it is seeking legal action. In response to the redundancy notices the coal union's Queensland district president, Stephen Smyth, called on miners to fulfil their social obligations.

"Mining companies have a social responsibility to the community they operate in," Smyth said referring to the fact that Middlemount is a town of just 2000 that continues to be wholly supported by its local coal industry. "With these forced redundancy Anglo shows the utmost disregard for the workers and contempt for their families and the Middlemount community who has served them for years."

That Anglo owes obligations to all of its stakeholders is a fact inescapable. But that holds too, surely, for a union.

Smyth and the union local leadership have played shaping roles in the decisions that have seen 140 CFMEU members maintain strike action for more than 100 days in the name of job security only for 32 of them, so far, to be told they will not be going back to work at all. The commission has found a "causal connection" between the strike and the dismissals now in train.

For exposing its Middlemount members to that risk President Smyth surely owes those people, at very least, a private apology.