BHP Billiton Mitsui Coal Pty Ltd T/A BHP Mitsui Coal Pty Ltd

[2019] FWCA 6455

[2019] FWCA 6455

FAIR WORK COMMISSION

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

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Annexure A