Central Queensland Services Pty Ltd (CQS) T/A BHP - [2024] FWC 854

[2024] FWC 854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Central Queensland Services Pty Ltd (CQS) T/A BHP

(AG2024/677)

BMA CAVAL RIDGE MINE ENTERPRISE AGREEMENT 2023

Mining industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 3 APRIL 2024

Application for an order relating to instruments covering transferring employees.

This decision concerns an application by Central Queensland Services Pty Ltd (the Applicant/CQS/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 Caval Ridge Mine Enterprise Agreement 2023[1] (the Agreement) will cover transferring employees who perform transferring work for the Applicant.

Background

The Applicant is part of the BHP Group which owns 50% of the BHP Mitsubishi Alliance Pty Ltd (BMA). The other 50% is owned by Mitsubishi Development Pty Ltd. BMA currently manages a number of metallurgical coal mines in Central Queensland’s Bowen Basin including the Caval Ridge Mine (the Mine). The employees at that Mine are covered by the BMA Caval Ridge Mine Enterprise Agreement 2023 (BMA EA).

WorkPac Pty Ltd and WorkPac Mining Pty Ltd (WorkPac/Old Employer) are engaged to provide labour hire personnel to the Applicant and are the employers of the employees covered by the WorkPac Coal Mining Agreement 2019[2] (WorkPac EA) who perform work at the Mines set out at paragraph [2].

The Applicant has made offers of direct employment to 2 individuals currently employed by WorkPac and labour hired to the Applicant at the Mines, to carry out the same (or substantially the same) work that the employees presently perform for WorkPac at the Mines. In addition, the Applicant intends to make further offers of direct employment to other individuals who are employed by WorkPac, for the same (or substantially the same) work that the individuals presently perform for WorkPac at the Mines.

As a result of recruiting these individuals to direct employment with the Applicant, the Applicant will insource the work which was previously performed by these individuals as employees of WorkPac, such that those employees will perform that work for the Applicant.

Both of the individuals have accepted the employment offers from the Applicant and will commence that employment in accordance with that offer and will therefore be transferring employees for the purposes of s.313 of the Act.

The orders sought by the Applicant are as follows:

1. Pursuant to s.318(1)(a) of the Fair Work Act 2009 (Cth), the WorkPac Coal Mining Agreement 2019[3] will not cover the Applicant and transferring employees in respect of their employment with Central Queensland Services 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 Central Queensland Services Pty Ltd.

3. Pursuant to s.318(4) this order will come into effect from…

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 854
Decision Date: 3 APRIL 2024

CaseChat Overview and Summary

Central Queensland Services Pty Ltd (CQS) T/A BHP applied to the Fair Work Commission for orders that the BMA Caval Ridge Mine Enterprise Agreement 2023 would cover transferring employees in respect of their employment with CQS. The application was made pursuant to s.318 of the Fair Work Act 2009, which permits the Commission to make orders concerning instruments that cover transferring employees and their new employers. The Fair Work Commission Deputy President, Dobson, considered the application and determined to grant the orders sought by CQS.

The legal issues before the Deputy President were whether the orders sought should be granted in light of the statutory considerations set out in s.318(3) of the Act. The Deputy President found that the BMA Caval Ridge Mine Enterprise Agreement 2023 was a transferable instrument within the meaning of s.312 of the Act, and that there was little if any business synergy between the WorkPac Coal Mining Agreement 2019 and the BMA Caval Ridge Mine Enterprise Agreement 2023. The Deputy President also found that the granting of the orders sought would assist CQS to standardise the conditions of its employees performing substantially the same work at the Caval Ridge Mine, would not disadvantage the employees affected by the orders, and would be in the public interest.

The Deputy President concluded that the orders sought should be granted, as they would assist CQS to achieve administrative efficiencies, mitigate any negative impact on productivity and working relationships, and better serve the interests of the transferring employees. The Deputy President issued orders to this effect.

This case provides useful guidance for employers who are seeking to insource work from labour hire arrangements and wish to ensure that their transferring employees are covered by a single enterprise agreement. The decision highlights the importance of considering the statutory factors set out in s.318(3) of the Act when applying for orders under s.318 of the Act. The decision also confirms that the Fair Work Commission will consider the public interest when determining whether to grant orders under s.318 of the Act.

Orders