BHP Coal Pty Ltd - [2024] FWC 833

[2024] FWC 833

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

(AG2024/809)

BMA ENTERPRISE AGREEMENT 2022

Mining industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 2 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 the employer of significant number of employees covered by the BMA Enterprise Agreement 2022 (BMA EA) at the Goonyella Riverside Mine, Peak Downs Mine, Saraji Mine and Blackwater Mine.

Central Queensland Services Pty Ltd (CQS/Old Employer) is the employer of the employees covered by the BMA Daunia Mine Enterprise Agreement 2023[2] (Daunia EA) who perform work at the Daunia Mine.

On 18 October 2023, Whitehaven Coal Ltd (Whitehaven), BHP Group Limited (the parent company of both the Applicant and CQS) and Mitsubishi Development Pty Ltd announced that they had reached an agreement for Whitehaven to acquire 100% ownership of both the Daunia and Blackwater mines (Divestment). As part of the Divestment, six employees of CQS who are covered by the Daunia EA will transfer to employment with the Applicant at a mine within the coverage of the BMA EA.

In February and March 2024, the Applicant made offers of ongoing full-time employment to six employees of CQS who are covered by the Daunia EA, to commence after their employment with CQS terminates (Transferring Employees). Those offers were accepted by the Transferring Employees.

The offers are on terms and conditions no less favourable overall than their current terms of employment with CQS under the Daunia EA.

The orders sought by the Applicant are as follows:

1. Pursuant to s.318(1)(a) of the Fair Work Act 2009 (Cth), the BMA Daunia Mine Enterprise Agreement 2023[3] will not cover transferring employees from Central Queensland Services Pty Ltd who perform transferring work in a classification contained in the Agreement 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 employees are employed by BHP Coal Pty Ltd and start to perform transferring work, whichever is the later date.

The orders will not apply to any other transferring employee employed by the Applicant at any other location, and the transferring work will be limited to the work covered by the transferrable instrument at the relevant locations.

The affected unions have had this application served on them and were invited to express their views.…

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.

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Details

Case: [2024] FWC 833
Decision Date: 2 APRIL 2024

CaseChat Overview and Summary

BHP Coal Pty Ltd applied to the Fair Work Commission for orders under section 318 of the Fair Work Act 2009 to determine the applicability of the BMA Enterprise Agreement 2022 to six employees transferring from Central Queensland Services Pty Ltd. The dispute involved the transfer of employees from the Daunia Mine to the Applicant's operations, with the application seeking to ensure that the transferring employees would be governed by the BMA Enterprise Agreement 2022 rather than the Daunia Enterprise Agreement 2023. The legal issues revolved around whether the BMA Enterprise Agreement 2022 should cover the transferring employees and if so, under what conditions. The Court had to consider various factors, including the views of the parties involved, potential disadvantages to the employees, the impact on productivity, and the public interest.

The Fair Work Commission assessed the application by weighing the Applicant's submissions against the statutory considerations outlined in section 318 of the Act. The Applicant argued that the BMA Enterprise Agreement 2022 would lead to better terms and conditions for the employees, enhance business synergy, and prevent significant economic disadvantages due to the need to administer two different agreements. The employees also expressed their support for the proposed orders. The Commission found that the granting of the orders would not disadvantage the employees, would benefit the Applicant's productivity and economic interests, and would align with the public interest. Although the BMA Enterprise Agreement 2022 had a shorter nominal expiry date than the Daunia Enterprise Agreement 2023, this was not considered a significant factor against the application.

The Court concluded that the orders should be granted to ensure the transferring employees are covered by the BMA Enterprise Agreement 2022, thereby avoiding the administrative burden and potential confusion associated with applying two different agreements. The orders also ensure that the transferring employees benefit from the terms and conditions of the BMA Enterprise Agreement 2022, which were deemed more advantageous overall. The decision reflects a balance between the interests of the employees, the Applicant, and the broader public interest in maintaining efficient and harmonious workplace practices.

Orders