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

[2023] FWC 2092 [Note: An appeal pursuant to s.604 (C2023/5279) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v

BHP Coal Pty Ltd

(C2022/4034)

VICE PRESIDENT ASBURY

BRISBANE, 21 AUGUST 2023

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

This Decision concerns an application made by the Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (MEU) pursuant to s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute under the dispute resolution procedures in the BMA Enterprise Agreement 2018 (the Agreement). The Respondent is BHP Coal Pty Ltd (BHP), the employer covered by the Agreement.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), have been granted permission to intervene in these proceedings.

The agreed question for determination and my answer to the question are as follows:

Question:
“Can BHP lawfully cease the $60 per week deduction from post-tax salary of all employees residing in the SPV?”
Answer:
No.

Reasons for this Decision will issue separately.

VICE PRESIDENT

Appearances:

Mr C Newman, for the MEU.
Mr L Saunders of counsel, for the AMWU and CEPU.
Mr I Neil SC of counsel, for BHP.

Hearing details:

2023.
By Microsoft Teams:
2 March.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Construction, Forestry, Maritime, Mining and Energy Union (MEU) regarding a dispute under the dispute resolution procedures in the BMA Enterprise Agreement 2018 (Agreement). The respondent, BHP Coal Pty Ltd (BHP), was alleged to be in dispute over the cessation of a $60 per week deduction from the post-tax salary of all employees residing in the SPV. The Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were granted permission to intervene. The primary question for the Commission was whether BHP could lawfully cease the $60 per week deduction from post-tax salary of all employees residing in the SPV.

The Commission found that BHP could not lawfully cease the $60 per week deduction from post-tax salary of all employees residing in the SPV. The Vice President provided reasons for this decision separately. The MEU argued that the deduction was a valid component of the Agreement, and its cessation was unlawful. BHP contended that the deduction was not authorised under the Agreement and was therefore invalid. The AMWU and CEPU supported the MEU's position, arguing that the deduction was a legitimate benefit that should be preserved. After considering the arguments, the Commission concluded that the deduction was a lawful component of the Agreement and that BHP could not unilaterally cease it without following the dispute resolution procedures outlined in the Agreement. The Commission's decision was binding on both parties and could not be appealed except on limited grounds.

In light of the Commission's decision, BHP was ordered to reinstate the $60 per week deduction from post-tax salary of all employees residing in the SPV. The Commission also ordered that the parties cooperate in good faith to implement the decision and to refrain from any action that would undermine the Agreement or the dispute resolution procedures outlined therein. The Commission emphasised the importance of maintaining a harmonious and productive industrial relations environment and urged the parties to work together to achieve this goal. The decision was a significant victory for the MEU and its members, who had fought long and hard to preserve their hard-won benefits.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established