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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CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union and BHP Coal Pty Ltd, the Fair Work Commission was tasked with resolving a dispute regarding the interpretation and application of the enterprise agreement and the National Employment Standards (NES). The union alleged that the company had breached the enterprise agreement and failed to comply with the NES provisions, leading to industrial action and a formal dispute.

The central legal issues before the Commission involved whether the company's actions constituted a breach of the enterprise agreement, and if the union's industrial action was lawful under the Fair Work Act 2009. Specifically, the union contended that the company had failed to meet certain obligations outlined in the enterprise agreement and had contravened the NES by not providing adequate notice of termination and redundancy payments.

The Commission examined the terms of the enterprise agreement and the NES, considering the evidence presented by both parties. It concluded that the company had indeed breached the enterprise agreement by failing to adhere to specific clauses, and that these breaches were sufficiently serious to warrant the union's industrial action. The Commission also determined that the union's actions were protected industrial action under the Fair Work Act. Consequently, the Commission ordered the company to remedy the breaches and compensate the affected employees accordingly.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established