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

[2022] FWC 498

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

(C2021/2662)

DEPUTY PRESIDENT ASBURY

BRISBANE, 7 MARCH 2022

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

Pursuant to clause 37 of the BMA Enterprise Agreement 2018, I determine the dispute by answering the question for arbitration as follows:

Question:
On the proper construction of the BMA Enterprise Agreement 2018, are the expressions of interest for the dragline training program (howsoever described) to be determined by the application of the selection process at clause 8.3 of the 2018 Agreement?

Answer:

Yes.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and BHP Coal Pty Ltd. The matter centred around the interpretation of a clause in the BMA Enterprise Agreement 2018, specifically clause 37, which was concerned with the expressions of interest for the dragline training program. The Union sought arbitration on whether the selection process outlined in clause 8.3 of the Agreement should apply to determine these expressions of interest. The Commission, under the Fair Work Act 2009, was tasked with determining the question of arbitration.

The legal issue at the heart of this case was the proper interpretation of clause 37 of the BMA Enterprise Agreement 2018. The Union argued that the expressions of interest for the dragline training program should not be subject to the selection process described in clause 8.3. Conversely, BHP Coal contended that the selection process must be applied. The Deputy President was required to examine the language of the Agreement, its context, and any relevant precedent to resolve this interpretative dispute.

In delivering the decision, Deputy President Asbury meticulously examined the text of the BMA Enterprise Agreement 2018 and considered the broader context in which the Agreement operated. The Deputy President noted that the language of clause 37, when read in conjunction with clause 8.3, clearly indicated that the selection process applied to the expressions of interest for the dragline training program. The reasoning underscored the importance of adhering to the terms of the enterprise agreement and ensuring that any interpretation aligned with the intentions of the parties as expressed in the Agreement.

Following the detailed analysis, Deputy President Asbury concluded that the expressions of interest for the dragline training program were indeed to be determined by the application of the selection process at clause 8.3 of the BMA Enterprise Agreement 2018. Consequently, the Deputy President answered the question for arbitration in the affirmative. This decision serves as a binding resolution to the dispute, providing clarity on the application of the selection process in this context.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established