BHP Coal Pty Ltd v Mining and Energy Union

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FEDERAL COURT OF AUSTRALIA

BHP Coal Pty Ltd v Mining and Energy Union [2025] FCA 1116  

File number(s): QUD 518 of 2025
Judgment of: WHEELAHAN J
Date of judgment: 10 September 2025
Catchwords:

INDUSTRIAL LAW – application for a stay of regulated labour hire arrangement orders made by the Fair Work Commission – orders made under s 306E of the Fair Work Act 2009 (Cth) – no express statutory power to order a stay under the Act – if no stay granted and applicants ultimately successful, recovery of overpayments difficult – claims of jurisdictional error based on correct test to apply pursuant to s 306E(1A) – whether the relevant work constituted the provision of a service or the supply of labour – employees also face prejudice if orders stayed

PRACTICE AND PROCEDURE – application pursuant to the Court’s implied power to grant stay – degree of strength of case for final relief required to succeed in an application for a stay – existence of a strong case for final relief is not a prerequisite for the grant of a stay – starting point is the object of the exercise of the power – object is to preserve the subject matter of the litigation – a stay should be granted only in exceptional circumstances – whether applicants’ case is attended with exceptional circumstances – stay not necessary to preserve the subject matter of the litigation in this case – application for a stay refused

Legislation:

Fair Work Act 2009 (Cth) ss 306E, 306E(1A), 306E(7A), 306F, 324(1), 562, 570

Federal Court of Australia Act 1976 (Cth) s 23

Judiciary Act 1903 (Cth) s 39B

High Court Rules 1952 (Cth) O 55, r 10

Supreme Court Act 1970 (NSW) s 23

Cases cited: Attorney-General (Ex rel Tamworth Corporation) v Birmingham, Tame and Rea District Drainage Board [1912] AC 788
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194
EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 360
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
MI&E Holdings Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Plumbing, Postal and Allied Services Union [2013] FCA 360
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597
Minister for Immigration v MZAPC [2025] HCA 5; 99 ALJR 486
National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Re Australian Industrial Relations Commission; Ex parte Hail Creek Coal Pty Ltd [2003] FCAFC 322
Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177
Re Griffin; Ex parte Professional Radio and Electronics Institute (Aust) (1988) 167 CLR 37
Re Marks and Federated Ironworkers’ Association; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 34 ALR 208
Re Merriman; Ex parte Australian Building and Construction Employees’…
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Details
Case
[2025] FCA 1116
Decision Date

CaseChat Overview and Summary

In the matter of BHP Coal Pty Ltd v Mining and Energy Union, the Fair Work Commission made regulated labour hire arrangement orders under section 306E of the Fair Work Act 2009 (Cth). The applicants sought a stay of those orders pending the determination of their application for judicial review. The legal issues the court had to decide included whether there was a strong case for final relief required to succeed in an application for a stay, and whether the applicants' case was attended with exceptional circumstances justifying a stay. The court had to consider the object of the exercise of the power, which is to preserve the subject matter of the litigation, and whether a stay should be granted only in exceptional circumstances.

The court held that the existence of a strong case for final relief is not a prerequisite to relief, but the absence of a strong case or the absence of manifest error are, in combination with other circumstances, relevant to the existence of exceptional circumstances. The court found that the applicants had established a prima facie case, but not a strong case on the limited argument that was presented on the interlocutory application. The court also found that a stay was not necessary to preserve the subject matter of the litigation, and that the applicants had not established exceptional circumstances that would make it appropriate for the Court to exercise its power to protect the subject matter of the proceeding. The court dismissed the interlocutory application filed on 1 September 2025.

The court held that the exercise of an inherent or implied power of a court to stay the operation of awards or orders of industrial tribunals having ostensible effect, thereby sterilising their operation, is an exceptional course. The object of the power that is being exercised is to preserve the subject matter of the proceeding and to protect the administration of justice. Consideration may be given to whether the applicant has a strong case for final relief, but the existence of a strong case for final relief, as opposed to a strong case for a stay, is not a necessary condition. The claims of jurisdictional error will be a matter for the Full Court. Whether a stay should be granted turns on whether there are exceptional circumstances.

The court dismissed the interlocutory application filed on 1 September 2025. The applicants' application for a stay of the Fair Work Commission's orders was dismissed. The court held that the applicants had not established exceptional circumstances that would make it appropriate for the Court to exercise its power to protect the subject matter of the proceeding. The court found that the applicants had established a prima facie case, but not a strong case on the limited argument that was presented on the interlocutory application. The court also found that a stay was not necessary to preserve the subject matter of the litigation. The court held that the exercise of an inherent or implied power of a court to stay the operation of awards or orders of industrial tribunals having ostensible effect, thereby sterilising their operation, is an exceptional course. The object of the power that is being exercised is to preserve the subject matter of the proceeding and to protect the administration of justice. Consideration may be given to whether the applicant has a strong case for final relief, but the existence of a strong case for final relief, as opposed to a strong case for a stay, is not a necessary condition. The claims of jurisdictional error will be a matter for the Full Court. Whether a stay should be granted turns on whether there are exceptional circumstances.

Orders

Orders of the court

1. The applicants’ interlocutory application filed on 1 September 2025 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am not satisfied that the final relief in this proceeding would be frustrated if a stay of the Commission’s orders were not made. The subject matter of this proceeding is the legality of the Commission’s orders, and not the consequences of complying with the statutory obligations that arise on the supposition that the orders are valid. While the applicants have established a likelihood that they will suffer some irreversible detriment should a stay not be ordered and on the assumption they obtain final relief, there is no real prospect that final relief would be futile. Far from it. In Re Moore at 15, Dawson J did not consider that claimed irreversible collateral consequences of the Commission’s orders that were under challenge were matters that rendered the proceedings futile. That is the situation here. In this proceeding, a stay is not necessary to preserve the subject matter of the litigation.Conclusions For the following reasons I am not satisfied that the applicants have established exceptional circumstances that would make it appropriate for the Court to exercise its power to protect the subject matter of the proceeding –(1)The situation of the employees is a matter to be given weight. It is to be presumed for the purposes of assessing prejudice to the employees that the Commission’s orders are valid, and that the regulated employees are entitled to the benefits that will accrue to them as a result. Although the applicants have offered undertakings which, following revision, were not ultimately criticised by the respondents at the hearing, the undertakings are only to compensate the regulated employees for the deprivation of the increased pay and other entitlements that will accrue to them by way of regular wages, superannuation contributions, and claims for leave. (2)While I am satisfied that the applicants have established a prima facie case, I am not persuaded that there is a strong case on the limited argument that was presented on the interlocutory application. While the existence of a strong case is not a prerequisite to relief, the absence of a strong case or the absence of manifest error are, in combination with other circumstances, relevant to the existence of exceptional circumstances.(3)The Court has expedited the hearing of the originating application which is fixed before a Full Court on 14 November 2025, thereby containing any adverse collateral consequences for the applicants. While the total sums that will likely be paid to the regulated employees in the period up to the Court’s judgment will be substantial, it is necessary to look at the matter proportionally. The parties agreed as a rough estimate that the increased pay represented an increase of about 15% of the regulated employees’ current remuneration.(4)I give little weight to the claimed difficulties in calculating any overpayments should the orders of the Commission be quashed. Given the significant sums involved on the applicants’ case, it was not persuasively explained why an accurate accounting of any overpayments could not be kept and calculations made by appropriately qualified staff, contractors, or professional advisers.(5)Finally, and this is the leading consideration, I am not satisfied that there is any real risk that the final relief claimed by the applicants will be imperilled if the stay is refused. This consideration takes this case outside the accepted exceptional circumstances in which the power to order a stay of the Commission’s orders may be exercised.

Ratio Decidendi

Legal Principle Established

In summary, it has long been recognised that the exercise of an inherent or implied power of a court to stay the operation of awards or orders of industrial tribunals having ostensible effect, thereby sterilising their operation, is an exceptional course. That characterisation of the circumstances in which the power will be exercised is a product of the confined nature of the court’s jurisdiction, which is one of judicial review concerned only with the legality of the Commission’s orders, and not with the underlying merits. It is also a product of the object of the power that is being exercised, which is to preserve the subject matter of the proceeding and to protect the administration of justice. In determining whether exceptional circumstances exist, it may be relevant to inquire whether the applicant has a strong case for final relief, but the existence of a strong case for final relief, as opposed to a strong case for a stay, is not a necessary condition.Consideration I accept that if the Commission’s decision is ultimately found to be affected by jurisdictional error, then there will be considerable inconvenience and difficulty occasioned to the applicants, and in all likelihood the regulated employees also, should payments made under the host employer instrument be repayable under general law restitutionary principles. I also accept that the scale of recovery would likely be large, and that the remedies available to the employers would be the subject of legal and practical limitations as a result of the operation of s 324(1) of the Fair Work Act in combination with the applicable enterprise agreement which would likely preclude any deduction from wages. However, while recovery would be very difficult, I do not think that all recovery rises to the level of impossible. I am satisfied that the applicants have a prima facie case for final relief on the ground of jurisdictional error. But I go no further. At an impressionistic level, the errors alleged by the applicants do not strike me as manifest jurisdictional errors. Otherwise, it is not necessary or desirable to engage in a detailed appraisal of the strength of the applicants’ claims, which is not possible given the nature of the errors that are alleged, the novel statutory provisions that are involved, and the absence of full argument. The claims of jurisdictional error will be a matter for the Full Court. Putting aside the strength of the applicants’ case for judicial review, whether a stay should be granted turns on whether there are exceptional circumstances. Those circumstances have been held to arise only where the applicants have demonstrated that a stay is required to preserve the subject matter of the litigation, or that refusal of a stay would make it difficult to grant the ultimate relief sought: Re ANF at 185 (McHugh J), citing Re Moore at 14 (Dawson J). The first respondent submitted that it would only be if final relief in this proceeding would be rendered “inutile” that the circumstances would justify a stay. This formulation reflects the statement in the joint judgment in MZAPC at [25] that the power of the Federal Court to protect the integrity of the processes before it is to ensure that it can grant final relief of utility.