Downer EDI Mining – Blasting Services Pty Ltd

In the Fair Work Commission, the applicant, Downer EDI Mining – Blasting Services Pty Ltd, sought approval for the Downer EDI Mining Blasting Services Queensland Coal Operations Agreement 2018. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) intervened in the process, despite not being a party to the agreement or involved in the workplace, seeking to be heard under section 590 of the Fair Work Act 2009. The legal issues that the Commission had to decide involved whether the CFMMEU was a stranger to the bargaining process, the workplace, and whether it was appropriate for the Commission to consider the CFMMEU's objections under section 590.

The Commission considered the circumstances under which the CFMMEU's request to be heard should be entertained. It noted that the CFMMEU had previously entered into a greenfields agreement with the applicant employer, which contained essentially the same terms as the current enterprise agreement. The Commission was concerned that the CFMMEU had not assisted in the approval of this agreement, despite having previously agreed to similar terms. At the end of the hearing, the Commission revisited the CFMMEU's request to be heard and determined that it was appropriate to consider the objections raised by the CFMMEU. The Commission also considered whether the applicant had complied with section 180(5) of the Fair Work Act 2009, whether all reasonable steps had been taken to reach a genuine agreement, and whether the agreement met the better-off-overall test.

The Commission found that the applicant had taken all reasonable steps to reach a genuine agreement and that the agreement met the better-off-overall test. It also found that the CFMMEU's request to be heard under section 590 was appropriate, despite its status as a stranger to the bargaining process and the workplace. The Commission considered the objections raised by the CFMMEU and determined that they did not prevent the approval of the enterprise agreement. The final orders of the Commission approved the Downer EDI Mining Blasting Services Queensland Coal Operations Agreement 2018, subject to certain modifications to address the CFMMEU's objections.