BHP Coal Pty Ltd - [2024] FWC 849

[2024] FWC 849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.318 - Application for an order relating to instruments covering new employer and transferring employees

BHP Coal Pty Ltd

(AG2024/610)

BMA ENTERPRISE AGREEMENT 2022

Mining industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 3 APRIL 2024

Application for an order relating to instruments covering transferring employees.

This decision concerns an application by BHP Coal Pty Ltd (the Applicant/BHP Coal/New Employer) for orders pursuant to s.318(1)(a) and s.318(1)(b) of the Fair Work Act 2009 (the Act) that the BMA Enterprise Agreement 2022[1] (the Agreement) will cover transferring employees who perform transferring work for the Applicant.

Background

The Applicant is part of the BHP Group which owns 50% of the BHP Mitsubishi Alliance Pty Ltd (BMA). The other 50% is owned by Mitsubishi Development Pty Ltd. BMA currently manages a number of metallurgical coal mines in Central Queensland’s Bowen Basin being the Goonyella Riverside Mine, Peak Downs Mine, Saraji Mine and Blackwater Mine (the Mines). The employees at those mines are covered by the BMA Enterprise Agreement 2022 (BMA EA).

WorkPac Pty Ltd and WorkPac Mining Pty Ltd (WorkPac/Old Employer) are engaged to provide labour hire personnel to the Applicant and are the employers of the employees covered by the WorkPac Coal Mining Agreement 2019[2] (WorkPac EA) who perform work at the Mines set out at paragraph [2].

The Applicant has made offers of direct employment to 2 individuals currently employed by WorkPac and labour hired to the Applicant at the Mines, to carry out the same (or substantially the same) work that the employees presently perform for WorkPac at the Mines. In addition, the Applicant intends to make further offers of direct employment to other individuals who are employed by WorkPac, for the same (or substantially the same) work that the individuals presently perform for WorkPac at the Mines.

As a result of recruiting the individuals to direct employment with the Applicant, the Applicant will insource the work which was previously performed by these individuals as employees of WorkPac, such that those employees will perform that work for the Applicant.

Both of the individuals have accepted the employment offers from the Applicant and will commence that employment in accordance with that offer and will therefore be transferring employees for the purposes of s.313 of the Act.

The orders sought by the Applicant are as follows:

1. Pursuant to s.318(1)(a) of the Fair Work Act 2009 (Cth), the WorkPac Coal Mining Agreement 2019[3] will not cover the Applicant and transferring employees in respect of their employment with BHP Coal Pty Ltd.

2. Pursuant to s.318(1)(b) of the Fair Work Act 2009 (Cth), an enterprise agreement, being the BMA Enterprise Agreement 2022,[4] does and will cover the transferring employees in respect of their employment with BHP Coal Pty Ltd.

3. Pursuant to s.318(4) this order will come into effect from the date of this order or when transferring…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read BHP Coal Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 849
Decision Date: 3 APRIL 2024

CaseChat Overview and Summary

The decision concerns an application by BHP Coal Pty Ltd (the Applicant) for orders under sections 318(1)(a) and 318(1)(b) of the Fair Work Act 2009 (the Act) to determine which enterprise agreement will cover transferring employees who will perform work for the Applicant. The Applicant, part of the BHP Group, owns 50% of the BHP Mitsubishi Alliance Pty Ltd (BMA) which manages several coal mines. The employees at these mines are currently covered by the BMA Enterprise Agreement 2022 (BMA EA). WorkPac Pty Ltd and WorkPac Mining Pty Ltd (WorkPac) are the employers of employees covered by the WorkPac Coal Mining Agreement 2019 (WorkPac EA) who perform work at the Applicant’s mines. The Applicant has offered direct employment to two individuals employed by WorkPac and intends to offer further employment to other individuals, making them transferring employees. The Applicant seeks orders to ensure the BMA EA covers the transferring employees, rather than the WorkPac EA.

The primary legal issues before the court were whether the WorkPac EA should cease to cover the Applicant and the transferring employees, and whether the BMA EA should cover these employees instead. This required consideration of the factors set out in section 318 of the Act. The Applicant argued that the orders would assist in standardising conditions, avoiding administrative burdens, and enhancing productivity and business synergy. The unions did not contest the application.

The Deputy President considered each factor outlined in section 318(3) of the Act. The Applicant supported the orders and the transferring employees did not oppose them. The BMA EA was deemed more beneficial overall, and the granting of the orders would not disadvantage the employees. The nominal expiry date of the agreements did not present an issue. The Deputy President accepted the Applicant’s submissions that not granting the orders would negatively impact productivity, cause significant economic disadvantage, and lack business synergy. The public interest was also considered to favour the orders. Based on these considerations, the Deputy President concluded that the orders should be granted.

The final orders issued were that the WorkPac EA would not cover the Applicant and the transferring employees, and the BMA EA would cover them. The orders would take effect from the later of the date of the decision or when the transferring employees start work for the Applicant.

Orders