An industrial relations watchdog recently gave the nod to terminate mine employees who opt not to relocate.
BHP Operations Services (OS MCAP) was within its legal rights to dismiss resources workers who refused to move interstate back in 2021.
The Fair Work Commission (FWC) recently rejected an appeal against the labour hire entity for allegedly sacking more than a dozen employees without severance payment. Their only so-called crime was refusing to be redeployed to either a Queensland or South Australian mine site.
“The work of the 17 employees was no longer required by OS MCAP at the Mount Arthur Coal Mine (127km northwest of Newcastle). However because OS MCAP was willing to engage these employees at other worksites, and relocation was authorised under their contracts, the employees were not dismissed and there were no redundancies,” Hall Payne Lawyers graduate solicitor Billy McEvoy said in a blog post.
“Some multi-site employers can lessen their redundancy obligations by including relocation terms in employment contracts. This would theoretically allow the closure of an entire worksite without enlivening redundancy entitlements, as long as the employer has other active worksites and is willing to redeploy affected workers.”
FWC’s full bench found the employer had asked affected employees for their preferred locations, and offered them the opportunity to resign if they did not wish to relocate.
“In 2021 OS MCAP notified its employees that their services at the Mount Arthur Coal Mine in NSW would be discontinued,” McEvoy said.
“After unproductive discussions with OS MCAP these employees were given a deadline to communicate their intention to continue or discontinue their employment. The employees did not respond to this request and their employment was terminated.”
The decision means workers will continue to experience consequences of redundancy without being eligible for any “benefits”.
“The full bench concluded that the burden of relocation on the employee is not a relevant consideration where relocation is authorised under the contract,” McEvoy said.
“For employees this decision highlights the importance of understanding what can be required of you under your employment contract, as it may affect your entitlements when employment circumstances change.”