The Guardian August 18, 1999

Miners fighting for justice

by Rohan Gowland

The Federal Government is still very evasive on the question of protecting 
workers' entitlements, even though it is under increasing public pressure 
to ensure that the Oakdale miners receive their entitlements.

Oakdale miners have been seeking justice since the mine announced in June 
that it was bankrupt, was closing and that there was no money left to pay 
$6.3 million in entitlements that the workers had accrued after many years, 
for some most of their lives, working for the mine.

Oakdale has brought to the fore the issue of what happens to workers' 
accrued entitlements when a company goes bust.

The main union demand has been for a national fund to be established so 
that employers will pay entitlements into this fund and the entitlements 
will be protected in the event of a company's insolvency.

The Government has been forced to agree to this move, the details of which 
are yet to be decided and could produce some differences.

The fact that there has been some progress towards a national fund to 
protect the entitlements of all Australian workers in the future is a very 
positive development and should be supported, however, it could take 
anything up to a year for the fund to be set up.

In the meantime there still remains the immediate issue of justice for the 
Oakdale miners. 

Seeking to address the immediate issue, officials of the Construction 
Forestry Mining and Energy Union (CFMEU) met with the Government early last 
week and proposed two practical solutions that could be implemented 
immediately for the Oakdale miners.

The Government, however, dismissed both proposals and only offered a paltry 
$200,000 to go towards counselling and re-training. The Government said 
that when the national fund is set up it could be paid to the Oakdale 
miners retrospectively.

But why not do something now? The Oakdale miners have lost their jobs and 
have been robbed of tens of thousands of dollars each that should have 
helped them and their families through the tough times of unemployment or 

The CFMEU's General President, Mining and Energy Division, Tony Maher, said 
last week, "The time has come for the Federal Government to resolve the 
Oakdale scandal.

"Our union will not allow decent hard-working miners to be robbed of their 
money nor will we accept that their families should be made to suffer any 

Miners in NSW and Queensland took a snap 24-hour strike from midnight last 
Thursday in response to what they called the Government's "arrogant" 
dismissal of the Oakdale issue and its stubborn refusal to come to a 

The first option the union put to the Government during the meeting in 
Canberra last week was for a one-off 10-cent levy on coal production to 
create an Emergency Fund for the coal industry to pay the Oakdale miners.

The CFMEU said this represents a paltry 0.2 per cent of the average price 
received last year for a tonne of exported coal.

This proposal has already been endorsed by the Federal Labor Party and the 
Australian Democrats.

Tony Maher said that the one-off 10-cent levy is "no more than a spit in 
the ocean" for coal companies. "Coal is Australia's top export earning 
industry, bringing in some $10 billion a year", he said.

The second option was to pay the Oakdale miners from the coal industry's 
$200 million Long Service Leave Fund. The union said this would be "the 
simplest option for the Government".

"This proposal would put no pressure whatsoever on the industry or the 
taxpayer. It simply requires an amendment by Federal Parliament to the 
industry's Long Service Leave Act", said Mr Maher.

The Democrats support making the necessary amendments to the Act. Democrats 
Senator Andrew Murray said, "I have written to the Government signalling 
that the Democrats would be prepared to support such limited legislative 
change as a matter of priority ...

"This legislative solution could provide a reasonable settlement of the 
unfortunate Oakdale situation while discussions proceed on setting up an 
appropriate national fund", said Senator Murray.

The miners and their union will continue to fight for justice for the 
Oakdale miners as well as a national fund to protect all workers' 
entitlements in the future.

Court frustrates Gordonstone miners

The fight continues for Queensland's Gordonstone miners to be re-employed, 
it is 18 months since they won Australia's biggest unfair dismissal case.

Industrial Relations Commissioner Hodder ruled in February, 1998, that when 
the mine reopened the illegally sacked miners should get preference of re-
employment. That decision was later overturned by a majority of the Full 
Bench of the Industrial Relations Commission (IRC).

In overturning the Hodder decision, the IRC Full Bench made a legal 
mistake. The union argued that the Hodder decision was not overturned 
because it was legally or technically wrong, but simply because they had a 
different opinion on the matter to that of Commissioner Hodder and in 
overturning Hodder's decision they were actually making a decision of their 
own on the same matter after a perfectly legal one had already been made.

In June this year, the Full Bench of the Federal Court found that the 
decision of the Full Bench of the IRC was wrong. It ruled that the IRC had 
"erred in law", but then conceded that under the Workplace Relations Act, 
the Federal Court did not have the power to correct the mistake  the IRC 
must do that.

However the IRC has decided to live with its mistake, rather than see 
justice done. On August 2, 1999, the Full Bench of the IRC decided not to 
correct its wrong decision, saying that to do so "would be against the 
public interest".

The union (CFMEU) said this is a staggering claim. "How can it be against 
the public interest to right a wrong?", said the union.

The union said that by refusing to correct its mistake the IRC has "allowed 
Rio Tinto [and ARCO] to achieve at Gordonstone what Chris Corrigan failed 
to do in the MUA dispute  replace a decent unionised workforce with scabs 
employed by a $1 shelf company!".

Up to this point the union had been pursuing a retrospective decision to 
have the miners who were sacked on October 1, 1997, re-employed. In the 
light of the IRC's refusal to reverse its incorrect ruling, the union then 
decided to seek in the Commission that the sacked miners be given 
preference of employment from now on.

This move has just been blocked by the employers taking Supreme Court 
action and the Supreme Court has granted an interim injuction against the 
union taking up the matter in the IRC until the Supreme Court deals with 
the matter in the next couple of weeks.

The employers argued to the Supreme Court that as part of the agreement 
that saw workers get paid their redundancy, they are not allowed to take 
any further action against the employer.

The union is arguing that this is not action about the workers getting 
illegally sacked. It is now a separate issue about them getting employment 
in the future.

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