BHP Coal Pty Ltd

[2012] FWA 7187

[2012] FWA 7187

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWA decision

BHP Coal Pty Ltd
(C2012/4994)

COMMISSIONER SPENCER BRISBANE, 23 AUGUST 2012

Application to revoke decision regarding majority support determination of VP Lawler issued in matter B2010/3244.

Introduction

[1] This decision relates to an application pursuant to the Fair Work Act (2009) (Cth) (the Act) s.603. BHP Coal Pty Ltd (BHP the Applicant) applies for an Order revoking a majority support determination (MSD) in relation to of Vice President Lawler in matter B2010/3244.

[2] His Honour issued the MSD on 11 August 2012 upon application of The Association of Professional Engineers, Scientists and Managers, Australia (APESMA). The determination granted a majority support determination order over the Applicant’s Broadmeadow site. Negotiations concerning this site have involved a number of applications and decisions of the Tribunal including a previous decision of the Tribunal, as presently constituted, refusing to revoke the Order the subject of this Decision.  1

[3] Subsequent to that decision the parties held further discussions. BHP (a party affected by the MSD Order) now applies for an Order revoking the MSD by consent with APESMA. Ms Licia Millar, Principal - Employee Relations of BM Alliance Coal Operations Pty Ltd, and Ms Catherine Bolger, Director of APESMA have provided consent correspondence in identical terms as follows:

“Further to the discussions between counsel, we confirm that the Parties do not see any utility in bargaining any further in relation to an enterprise agreement covering staff employed at Broadmeadow Mine.”

Relevant legislation

603 Varying and revoking FWA’s decisions

(1) FWA may vary or revoke a decision of FWA that is made under this Act (other than a decision referred to in subsection (3)).

Note: If FWA makes a decision to make an instrument, FWA may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) FWA may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) FWA must not vary or revoke any of the following decisions of FWA under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(c) a decision under Part 2-5 (which deals with workplace determinations);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: FWA can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

Consideration

[4] The parties in the consent application to revoke the MSD order submitted that:

“5. Followings discussions between the parties thereafter, neither the Applicant nor the Respondent believe that there is utility in continuing to bargain at this time at the Broameadow site.

6. In light of this, the Applicant, as a person affected by the MSD, seeks a revocation of the MSD on the basis that:

(a) essential preconditions for the making of the MSD no longer exist;

(b) it is in the public interest that the MSD be revoked; and

(c) the matters referred to in paragraph 5 above constitute exceptional circumstances justifying the exercise of power under s603(1) of the FW Act.

7. The Respondent has informed the Applicant that it will not oppose this application.

[5] The Tribunal has previously considered an application pursuant to s.603 in the previous decision refusing to revoke the Order of Vice President Lawler in this matter. In that Decision it was said:

[15] The parties; agreed the MSD decision (B2010/3244) issued by Lawler VP was appropriately made as at 5 August 2010 in accordance with s.443 of the Act. At that time 52 of the 74 employees voted in favour of forming an enterprise agreement. APESMA accepted that the Tribunal had the power to revoke the MSD. Neither party considered it an impediment that the revocation application before the Tribunal as currently constituted; was to revoke another Member’s order. APESMA however emphasised that considerable caution should be exercised in these circumstances, and it would be rare that such a revocation be granted. 2

[6] It was further considered in that Decision:

[51] The case authorities establish that the revocation of an Order; is a serious matter. 3 As stated the original basis for the Order being granted is not questioned (although it was objected to at the time by BHP.)...4

[7] As stated, further to the decision the parties have now reached an agreed position in seeking the revocation Order.

[8] On the basis of the consent application provided by the parties, the submissions setting out the context of the changed circumstances and the satisfaction of matters in relation to s.603 I grant the revocation of the MSD Order of Vice President Lawler issued on 11 August 2010 (PR500487).

[9] A separate Order will issue simultaneously with this Decision [PR528202].

COMMISSIONER

Appearances:

On the papers

 1  APESMA v BHP Coal Pty Ltd; BHP Coal Pty Ltd v APESMA [2012] FWA 4435.

 2   Ibid at [15.

 3   Re Rheem-Rydalmere Plant Industrial Action Order 2002, Munro J, unreported, 9 April 2003, PR929970.

 4   APESMA v BHP Coal Pty Ltd; BHP Coal Pty Ltd v APESMA [2012] FWA 4435 at [51].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR528201>