BHP WAIO Pty Ltd - [2025] FWC 2958

[2025] FWC 2958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

BHP WAIO Pty Ltd

(AG2025/2927)

Building, metal and civil construction industries
DEPUTY PRESIDENT BINET	PERTH, 8 OCTOBER 2025

Application for an order relating to instruments covering new employer and transferring employees

BHP WAIO Pty Ltd (BHP) has made an Application (Application) for an order pursuant to section 318 of the Fair Work Act 2009 (Cth) (FW Act). The Application seeks an order that the Mining Area C Operations Agreement 2015 (MAC Agreement) and not the Komatsu Australia Pty Ltd Pilbara Service Branch Enterprise Agreement 2025 (Komatsu Agreement) cover Mr Jonathan Freeman (Mr Freeman) and BHP during his employment with BHP (Orders).

The MAC Agreement was made pursuant to s.185 of the FW Act and has passed its nominal expiry date of 12 August 2019. The parties to the MAC Agreement are BHP and employees of BHP employed in the classifications set out in Schedule 1 of the MAC Agreement undertaking work in Mining Area C Operations.

The Komatsu Agreement was made pursuant to s.185 of the FW Act. The Komatsu Agreement has a nominal expiry date of 11 January 2028. The parties to the Komatsu Agreement are Komatsu Australia Pty Ltd (Komatsu) and employees of Komatsu who work from or report to the Service Operations Division, Service Department in the Pilbara and/or Kimberley Regions of Western Australia and who are employed to perform work within the following classifications: Field Service Technician, Field Service Technician (Residential), Field Service Technician (FIFO), Field Service Technician (HV Electrician), Field Service Technician (Auto Electrical), High Voltage Electrician, Workshop Technician, Leading Hand Technician, Materials Handler, Painter, Boilermaker, Tradesperson (unspecified), Serviceperson, Trades Assistant or Apprentice.

Komatsu Australia Pty Ltd (Komatsu) were engaged by BHP to perform mobile mechanical maintenance at the South Flank Mine Site. From 10 September 2025, the duties currently performed (Transferring Work) by the Komatsu employees will be performed by employees of BHP.

Mr Jonathon Freeman (Mr Freeman) a Komatsu employee covered by the Komatsu Agreement has accepted an offer to transfer his employment from Komatsu to BHP with effect from 10 September 2025. Since the transfer, Mr Freeman has performed the role of Technician Mechanical for BHP.

Pursuant to section 313 of the FW Act, the Komatsu Agreement will cover BHP and Mr Freeman if there is a connection between BHP and Komatsu for the purposes of section 313 and if within three months of the termination his employment with Komatsu, Mr Freeman is employed by BHP to perform work which is the same or substantially the same as the work Mr Freeman performed for Komatsu.

BHP asserts that there is a connection between itself and Komatsu for the purposes of section 313 because the work to be performed by Mr Freeman was work which…

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

AGLC: BHP WAIO Pty Ltd [2025] FWC 2958
Case: [2025] FWC 2958
Decision Date: 8 OCTOBER 2025

CaseChat Overview and Summary

BHP WAIO Pty Ltd applied to the Fair Work Commission for an order under section 318 of the Fair Work Act 2009, requesting that the Mining Area C Operations Agreement 2015 (MAC Agreement) apply to Mr Jonathan Freeman and BHP instead of the Komatsu Australia Pty Ltd Pilbara Service Branch Enterprise Agreement 2025 (Komatsu Agreement). The MAC Agreement had expired, while the Komatsu Agreement had a nominal expiry date of 11 January 2028. Mr Freeman, previously employed by Komatsu, accepted a transfer to BHP, where he would perform similar duties. BHP argued that the Komatsu Agreement should not apply due to the lack of connection between BHP and Komatsu, and that the MAC Agreement would provide better terms and operational efficiency.

The court considered whether BHP and Komatsu had a connection for the purposes of section 313 of the FW Act and if the work Mr Freeman performed for BHP was the same or substantially the same as his work for Komatsu. BHP asserted that there was no connection since it had ceased outsourcing the work to Komatsu, and the work Mr Freeman would perform for BHP was substantially the same. The court also assessed the views of the new employer, the affected employees, potential disadvantages to the employees, the nominal expiry dates of the agreements, the impact on productivity and economic disadvantage, the degree of business synergy, and the public interest. BHP argued that the MAC Agreement would create employment simplicity, align rostering arrangements, and mitigate operational and cultural disharmony. Mr Freeman had not objected to the order, and BHP identified both disadvantages and advantages of the proposed order to Mr Freeman.

The Deputy President concluded that it was appropriate to make the order sought by BHP, noting that Mr Freeman had not objected, and the order would assist in maintaining a cohesive and productive workplace. The order was consistent with the objects of the Fair Work Act, promoting productivity and beneficial terms for employees. The Deputy President determined that there was nothing to suggest the orders would be contrary to the public interest. The court granted the order, and BHP would now be covered by the MAC Agreement instead of the Komatsu Agreement.

Orders