BHP Olympic Dam Corporation Pty Ltd

[2024] FWCA 477

[2024] FWCA 477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BHP Olympic Dam Corporation Pty Ltd

(AG2023/5166)

OLYMPIC DAM EMPLOYEE AGREEMENT 2023

Mining industry
COMMISSIONER WILSON	MELBOURNE, 5 FEBRUARY 2024

Application for approval of the Olympic Dam Employee Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Olympic Dam Employee Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BHP Olympic Dam Corporation Pty Ltd. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 13 June 2023 and the Agreement was made on 1 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. The Australian Workers' Union (AWU) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) at Question 7 of their Form F18 Declaration of employee organisation in relation to an application for approval of an enterprise agreement raise a concern that not all employees were provided with a reasonable opportunity to vote in a free and informed manner because not all employees were notified of the ballot and had an opportunity to vote. The AWU on 12 January 2024 also expressed Better Off Overall Test concerns in response to the Applicant’s submissions and undertakings as well as pressing the concern that not all employees received notice of the ballot. The AMWU reiterated its concerns on 12 January 2024 in response to the Applicant’s submissions and undertakings.

1. Individual employee bargaining representatives also raised concerns that negotiations were not carried out in good faith and of a lack of genuine agreement. These matters include positional management side statements designed to end bargaining; the failure of the agreement to deal with certain on-site requirements; and refusal to work on a public holiday.

1. After considering the Applicant’s response to the concerns indicated by me on 22 December 2023, as well as material provided by each of the AWU and AMWU and several bargaining representatives I disclosed to the parties on 19 January 2024 the matters that I viewed as remaining concerns and provided the bargaining representatives a further opportunity to provide material pertinent to the genuine agreement concerns or other matters of concern. No persuasive material was received, and no bargaining representative sought to be heard on the subject of their objections.

1. I am satisfied after considering the totality of the Applicant’s material that there was genuine agreement and that reasonable procedures were in place to ensure that every person eligible to vote had an opportunity to do so. Similarly, I am satisfied that the original material, subsequent submissions, and the undertakings filed on 22 January 2024 resolved all concerns that the Agreement may not pass the Better Off Overall Test.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The Australian Workers' Union 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 they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2024. The nominal expiry date of the Agreement is 5 February 2028.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

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