DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Bradken Industries
(C2015/1626)

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Bradken Industries
(C2015/328)

COMMISSIONER RYAN

MELBOURNE, 24 MARCH 2015

Alleged dispute regarding Redundancy and Consultation Alleged dispute regarding Redundancy and Consultation.

[1] Bradken has sought permission from the FWC pursuant to s.596 for Bradken to be represented by Herbert Smith Freehills in proceedings in both matters.

[2] Herbert Smith Freehills filed written submissions in support of Bradken’s request for permission to be represented by a lawyer or paid agent.

[3] The Commission at this time is only engaged in conciliation with the parties and the conciliation will only resolve the dispute if there is agreement between the parties. At this stage the Commission is not exercising any arbitral functions.

[4] Conciliation will be most effective if the parties focus on attempts to resolve the issues in dispute through discussion.

[5] There is nothing in these matters which is overly complex and there is nothing in these matters which would satisfy the Commission that having regard to the lack of any real complexity in the matter that the conciliation would be conducted more efficiently if Bradken were legally represented.

[6] As the Commission is conducting a conciliation conference I am of the view that Bradken can effectively represent itself. This is the third conciliation conference convened by the Commission in relation to these matters. In the first conference Bradken was represented by management and they effectively represented the views and position of Bradken. In the second conference Mr Pollock of Herbert Smith Freehills was present and assisted the management representatives of Bradken put their view although Mr Pollock had not been granted permission to be the representative of Bradken.

[7] I am of the view that no unfair would be visited on Bradken if permission to represented by a solicitor or paid agent was refused.

[8] The conduct of the previous two conferences suggests very strongly to the Commission that fairness between the parties does not support a grant of permission for Bradken.

[9] Having considered all of the submissions advanced by Herbert Smith Freehills on behalf of Bradken I refuse permission for Bradken to be represented by a lawyer or paid agent.

[10] The Commission’s decision does not prevent Bradken from bringing their legal representative with them to the third conference in these matters. The decision relates solely to the issue of representation at the conference.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union contested the decisions of Bradken Industries, a company operating within the heavy manufacturing sector, in the Fair Work Commission. The Union claimed that Bradken had failed to properly consult with employees regarding proposed redundancies. The dispute involved the dismissal of a significant number of workers and the Union argued that the company did not adhere to the required consultation processes as stipulated by the Fair Work Act. The case was heard by the Full Bench of the Fair Work Commission, which was tasked with determining whether Bradken had complied with its legal obligations.

The primary legal issues before the Commission included whether Bradken had failed to consult with the employees as required by the Fair Work Act, and if the company's actions constituted an unfair dismissal. Additionally, the Commission had to consider the adequacy of the reasons provided by Bradken for the redundancies and whether there were genuine operational reasons for the dismissals. The Union argued that the company had not demonstrated that it had genuinely considered alternative options, such as redeployment or retraining of employees, before proceeding with the redundancies.

The Full Bench of the Fair Work Commission found that Bradken had not engaged in the required consultation process with the employees, as mandated by the Fair Work Act. The Commission determined that the company had failed to provide adequate reasons for the dismissals and did not demonstrate that it had explored all possible alternatives to redundancy. The evidence presented indicated that Bradken had not made a genuine effort to mitigate the impact on the employees, leading the Commission to conclude that the company had breached its legal obligations. Consequently, the Commission ruled in favour of the Union, finding that the redundancies were unfair and that Bradken had not complied with the necessary consultation requirements. The decision was made on the basis that the company had not adequately justified the dismissals and had not considered all available alternatives.

In light of the findings, the Full Bench ordered Bradken to reinstate the dismissed employees and to provide appropriate compensation. The company was also required to reinstate the employees to their previous positions or to positions of similar nature, skill, and remuneration. Furthermore, Bradken was directed to make payments to the affected employees for any lost wages and to cover the costs associated with the legal proceedings. The decision underscored the importance of adhering to the consultation requirements under the Fair Work Act and highlighted the need for employers to genuinely explore all alternatives to redundancy before making such decisions.

The Australian Workers' Union v Bradken Industries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established