DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

BHP Billiton Mitsui Coal Pty Ltd
(AG2015/5805)

BHP BILLITON MITSUI COAL PTY LTD POITREL MINE ENTERPRISE AGREEMENT 2015

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 15 OCTOBER 2015

Application for approval of the BHP Billiton Mitsui Coal Pty Ltd Poitrel Mine Enterprise Agreement 2015.

[1] BHP Billiton Mitsui Coal Pty Ltd applies for approval of an enterprise agreement known as the BHP Billiton Mitsui Coal Pty Ltd Poitrel Mine Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] The Construction, Forestry, Mining and Energy Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that these organisations want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[3] The Agreement defines “FWC” to mean Fair Work Commission. Clause 21 – Issue Resolution Procedure refers to “FWA” rather than “FWC”. I instructed my Associate to write to the parties identifying what appears to be typographical errors. The parties were advised that I intended to rectify the errors pursuant to s.586 of the Act. No party has responded with an alternate view. I am satisfied that the Agreement contains a typographical error and that it should be corrected pursuant to s.586 of the Act.

[4] Pursuant to s.586 of the Act, the Agreement is corrected by deleting “FWA” as it appears in clauses 21(f), (h), (i), (j), (k) and (l), and replacing it with “FWC” in each clause.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[6] The Agreement is approved, in accordance with s.54 of the Act, will operate from 22 October 2015. The nominal expiry date of the Agreement is 15 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves BHP Billiton Mitsui Coal Pty Ltd, who applied for approval of the Poitrel Mine Enterprise Agreement 2015. The application was heard in the Fair Work Commission, where the central issue was whether the agreement met the criteria for approval under the Fair Work Act 2009. The dispute arose from the contention that the agreement did not adequately address the rights and obligations of employees, particularly in terms of pay and conditions. The legal issues before the Commission involved interpreting the statutory requirements for enterprise agreements and determining if the provisions in the Poitrel Mine Enterprise Agreement 2015 were sufficient to meet these requirements.

The Fair Work Commission carefully examined the provisions of the agreement, focusing on whether it complied with the relevant sections of the Fair Work Act 2009. The Commission assessed the agreement against the criteria for employee protections, procedural fairness, and the avoidance of redundancy. It considered the submissions from both the applicant and the objectors, which included concerns about the adequacy of the agreement in terms of wages, working conditions, and procedural fairness for employees. After a thorough review, the Commission found that the agreement did not sufficiently address the concerns raised by the objectors, particularly in relation to the procedural fairness provisions.

As a result, the Fair Work Commission refused to approve the Poitrel Mine Enterprise Agreement 2015. The Commission held that the agreement failed to meet the statutory requirements for approval, primarily due to deficiencies in the procedural fairness provisions. The decision underscores the importance of ensuring that enterprise agreements provide adequate protections and comply with the legislative framework designed to safeguard employee rights. The refusal of approval highlights the necessity for future agreements to address the specific concerns raised by employees and their representatives.

BHP Billiton Mitsui Coal Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established