Construction, Forestry, Maritime, Mining and Energy Union v BHP Coal Pty Ltd

[2021] FWC 622

[2021] FWC 622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Maritime, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2019/7762)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 FEBRUARY 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] I have determined to answer the questions for arbitration as follows:

Question:

What is the meaning of “crew”, for the purposes of clause 22.6(b) of the BMA Enterprise Agreement 2018 (Agreement)?

Answer:

“Crew” for the purposes of clause 22.6(b) of the Agreement means a group of employees (the crew) to which BHP Coal Pty Ltd (BHP) has assigned an approved crew number.

Question:

Can a labour hire employee who is not actually taking annual leave be included towards the 20% quota in clause 22 of the Agreement?

Answer:

No. Labour hire employees who are included in approved crew numbers are counted for the purposes of quantifying the group of employees including employees of labour hire companies (the crew) upon which the number of 20% quota is calculated. Employees of labour hire companies who are included in approved crew numbers are not included in the 20% quota unless they are actually taking annual leave, or have annual leave approved, in a relevant period.

Question:

What information is required to be provided to Employees, or to be accessible to Employees, in order to ascertain whether or not they are entitled to take annual leave on the basis of the leave quotas in clause 22 of the Agreement?

Answer:

The information that is required to be provided to employees or made accessible to them, in order to ascertain whether or not they are entitled to take annual leave on the basis of the leave quotas in clause 22 of the Agreementis:

1. The approved crew number – ie. the number of positions approved by BHP – for the crew to which employees seeking leave are assigned including positions held by, or approved to be held by, employees of labour hire companies;

2. The identity of other employees – including employees of labour hire companies – who are included in approved crew numbers for that crew and who are taking annual leave or have annual leave approved, at the same time as the employees seeking to take annual leave; and

3. The dates upon which other employees – including employees of labour hire companies holding positions in the crew – are taking annual leave or approved to take annual leave in the same period for which the employees in that crew seek to take annual leave.

DEPUTY PRESIDENT

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