DECISION

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

BHP Billiton Mitsui Coal Pty Ltd T/A BHP Mitsui Coal Pty Ltd
(AG2019/2591)

BHP BILLITON MITSUI COAL PTY LTD POITREL MINE ENTERPRISE AGREEMENT 2019

Coal industry
COMMISSIONER HUNT	BRISBANE, 18 SEPTEMBER 2019

Application for approval of the BHP Billiton Mitsui Coal Pty Ltd Poitrel Mine Enterprise Agreement 2019.

[1] BHP Billiton Mitsui Coal Pty Ltd T/A BHP Mitsui Coal Pty Ltd (BHP) has applied for approval of an enterprise agreement known as the BHP Billiton Mitsui Coal Pty Ltd Poitrel Mine Enterprise Agreement 2019 (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 Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with BHP, and as a result, BHP has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the 23 employee bargaining representatives and each of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) regarding the undertakings provided by BHP.

[3] Each of the CFMMEU, AMWU and the CEPU wrote to my chambers and indicated that they had no objections to BHP’s written undertakings. None of the 23 employee bargaining representatives provided a view on BHP’s written undertakings.

[4] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[5] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

[7] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 September 2019. The nominal expiry date of the Agreement is three years from the date of approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves BHP Billiton Mitsui Coal Pty Ltd and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute was brought before the Fair Work Commission (FWC) and concerned the application for approval of the BHP Billiton Mitsui Coal Poitrel Mine Enterprise Agreement 2019. The primary issue was whether the enterprise agreement met the requirements for approval under the Fair Work Act 2009. The FWC had to determine whether the agreement was a genuine enterprise agreement, free from any improper conduct, and whether it was in the best interests of the employees.

The legal issues at the heart of the case were whether the agreement was genuinely negotiated and if the process followed was appropriate. The FWC also had to consider if the agreement provided for fair and reasonable terms and conditions, and if it adhered to the relevant provisions of the Fair Work Act. Furthermore, the FWC needed to assess whether there was any evidence of coercion, undue influence, or any other improper conduct that could invalidate the agreement.

In its decision, the FWC found that the enterprise agreement was genuinely negotiated and met the requirements for approval. The FWC determined that the process followed by the parties was appropriate and that the agreement provided for fair and reasonable terms and conditions. The FWC also concluded that there was no evidence of coercion or undue influence in the negotiation process, and that the agreement was in the best interests of the employees. As a result, the FWC approved the BHP Billiton Mitsui Coal Poitrel Mine Enterprise Agreement 2019.

The FWC's final order was that the enterprise agreement be approved, effective from the date of the decision. The agreement would now be registered with the Fair Work Commission and would govern the employment terms and conditions of the employees at the Poitrel Mine. The decision provides a clear example of the FWC's approach to assessing the validity of enterprise agreements and the factors it considers in making its determinations.

BHP Billiton Mitsui Coal Pty Ltd T/A BHP 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