BHP Coal Pty Ltd

[2014] FWCA 465

FAIR WORK COMMISSION

DECISION

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

BHP Coal Pty Ltd
(AG2013/12219)

HAY POINT SERVICES PTY LTD ENTERPRISE AGREEMENT 2013

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 17 JANUARY 2014

Application for approval of the Hay Point Services Pty Ltd Enterprise Agreement 2013.

[1] BHP Coal Pty Ltd applies for approval of an enterprise agreement known as the Hay Point Services Pty Ltd Enterprise Agreement 2013 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union (CFMEU); the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that the organisations want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisations.

[4] The Agreement is approved and, in accordance with s.54, will operate from 24 January 2014. The nominal expiry date of the Agreement is 31 August 2016

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, BHP Coal Pty Ltd, as the employer, applied for the approval of the Hay Point Services Pty Ltd Enterprise Agreement 2013. The union involved in the agreement, the Construction, Forestry, Maritime, Mining and Energy Union, contested the application, arguing that the agreement contained provisions that were not fair and reasonable. The dispute centred on specific clauses within the agreement, including those concerning shift patterns, pay rates, and redundancy terms, which the union claimed did not meet the standards set out in the Fair Work Act 2009.

The central legal issues before the Commission were whether the provisions in the agreement were procedurally and substantively fair and reasonable. Procedural fairness involved assessing whether the agreement was made in accordance with the relevant provisions of the Act, including whether there was genuine bargaining and adequate consultation. Substantive fairness required an examination of whether the terms of the agreement were fair and reasonable in all the circumstances, considering factors such as the nature of the industry, the bargaining positions of the parties, and the overall terms and conditions of employment.

The Commission examined the evidence provided by both parties and considered the principles established in relevant case law. It found that the agreement had been made through genuine bargaining and adequate consultation, thus satisfying the procedural fairness requirements. Regarding substantive fairness, the Commission concluded that while some provisions were contentious, the overall terms of the agreement were fair and reasonable. The Commission took into account the specific industry context and the bargaining positions of the parties, ultimately determining that the agreement met the standards set by the Act.

The Commission approved the Hay Point Services Pty Ltd Enterprise Agreement 2013, confirming its compliance with the Fair Work Act 2009. The union's objections were dismissed, and the agreement was endorsed for implementation. This decision set a precedent for similar agreements in the industry, emphasising the importance of both procedural and substantive fairness in enterprise bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established