ENTERPRISE BARGAINING – bargaining order – ss.229, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to dismiss application by Construction, Forestry, Mining and Energy Union (CFMEU) for bargaining order – Commission at first instance found that for the bargaining order to be granted, the respondent must have engaged, or not refrained from engaging, in capricious or unfair conduct, and that the conduct undermined freedom or association or collective bargaining – found that by restructuring its operations and making workers redundant as a means of mitigating loss incurred by protected industrial action, the respondent, Capcoal, did not engage in capricious or unfair conduct – permission to appeal granted on the basis that dispute raised important questions about the application of s.228(1)(e) FW Act – appellant argued that that evidence provided proof of a failure by Capcoal to not engage in capricious or unfair conduct – Full Bench satisfied that Capcoal’s actions were a legitimate response to the commercial and operating circumstances it found itself in as a result of industrial action – Full Bench noted that employers would be at risk of breaching good faith bargaining obligations under s.228(1)(e) if they make employees redundant without legitimate business reasons, but that this was not the case in these circumstances – action of Capcoal not capricious or unfair – Full Bench also found that ‘protected’ industrial action leave employees immune from certain civil and criminal liability (including under the FW Act) but does not prevent an employer from responding to industrial actions in a manner that addresses its legitimate business interests – appeal dismissed. Appeal by Construction, Forestry, Mining and Energy Union against Decision of Asbury DP of 25 November 2016 [PR587924] Re: Anglo Coal (Capcoal Management) P/L t/a Capcoal
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