Mining and Energy Union
[2025] FWC 181
•20 JANUARY 2025
| [2025] FWC 181 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
Mining and Energy Union
(AG2024/4752)
| Mining industry | |
| COMMISSIONER DURHAM | BRISBANE, 20 JANUARY 2025 |
Application for an order relating to instruments covering new employer and non-transferring employees
The Mining and Energy Union (MEU/Applicant) has applied for an order under section 319 of the Fair Work Act 2009 (the Act) to the effect that the BMA Daunia Mine Enterprise Agreement 2023 will cover non-transferring employees engaged by Whitehaven Coal Mining Ltd to work at the Daunia mine site.
Specifically, the MEU seeks the following order:
“Non-transferring employees engaged by Whitehaven Coal Mining Ltd to work at the Daunia mine site, whose employment falls under the classifications the BMA Daunia Mine Enterprise Agreement 2023, will be covered by the BMA Daunia Mine Enterprise Agreement 2023 from:
a. in the case of a non-transferring employee already engaged by Whitehaven Coal Mining Ltd – from the date of this order;
b. in the case of a non-transferring employee engaged by Whitehaven Coal Mining.”
Background
On 23 October 2023, Whitehaven Daunia Pty Ltd and Whitehaven Blackwater Pty Ltd, as subsidiaries of Whitehaven Coal Ltd, entered into a transaction to acquire 100% of both
the Daunia and Blackwater coal mines from the BHP Mitsubishi Alliance.
Arising from the transaction, two cohorts of employees engaged by Whitehaven Coal
Mining Ltd (WCM/Employer, a subsidiary of Whitehaven Coal Ltd) are covered by the BMA Daunia Mine Enterprise Agreement 2023 (the Agreement) in relation to the transferring work.
Those two cohorts are:
a. transferring employees formerly engaged by Central Queensland Services Pty Ltd
or BHP Coal Pty Ltd, by operation of law under s 313 of the Act, as the Agreement applied to their employment prior to the transfer of business (the BMA employees); andb. transferring employees formerly engaged by OS ACPM Pty Ltd or OS MCAP Pty Ltd, pursuant to an order and decision (the Decision) made by me on 15 May 2024 under s 318 of the Act (the OS employees).
As set out in my reasons within the Decision, Whitehaven argued that purpose of the
s 318 order was to align the terms and conditions of the OS employees with the wider cohort of transferring BMA employees, by providing the OS employees with the terms and conditions of employment contained in the Agreement.
The present application seeks an order under s 319 that non-transferring employees
engaged by WCM are covered by the same industrial instrument as the BMA employees
and the OS employees.
This cohort consists of new employees engaged by WCM directly to perform work at the Daunia coal mine in classifications covered by the Agreement, who were not originally engaged by Central Queensland Services Pty Ltd, BHP Coal Pty Ltd, OS ACMP Pty Ltd or OS MCAP Pty Ltd. The MEU submits that such work is transferring work within the meaning of the Act per s 311(1)(c).
The non-transferring employees are presently paid and engaged on the basis that the
Agreement applies to their employment. The MEU considers that the terms and conditions of the Agreement apply to the engagement of the non-transferring employees under the general law. As such, the MEU has lodged this application to clarify that the Agreement covers their employment for the purposes of the Act, in circumstances where the Black Coal Mining Award 2020 (the Award) may otherwise cover the employment.
The order is therefore sought based on the reasons given largely overlapping with those given in the Decision.
Section 319(3) Considerations
Views of the employer – Section 319(3)(a)(i)
WCM confirmed their support of the application, stating they do not wish to raise any objection.
According to the MEU’s application, it is their observation that making of the proposed order would align with WCM’s position as set out in the Decision at [21] of ensuring that “post the Transaction … the whole of the production and maintenance employee cohort at the Daunia and Blackwater mines receive the same or substantially the same terms and conditions of employment and are covered by the same enterprise agreements.”
Views of the affected employees – Section 319(3)(a)(ii)
Affected employees were afforded an opportunity to provide their views regarding the applicant but have not provided any.
The MEU in their application state that as a matter of practical reality, the affected employees’ pay, and conditions already align with the Agreement.
It is noted that the MEU, as a representative of affected employees, the Australian Manufacturing Workers' Union (AMWU) and the Electrical Trades Union (ETU) supports the order being made.
Any disadvantage to the affected employees – Section 319(3)(b)
The MEU submitted the terms and conditions of the Agreement are substantially superior to those of the Award.
Nominal Expiry Date – Section 319(3)(c)
The nominal expiry date of the Agreement is 17 November 2027. The MEU submitted the substantial remaining nominal term of operation of the Agreement weighs in favour of making the order sought, as it will ensure alignment of conditions and certainty for nearly three years at the worksite.
Impact on productivity, economic disadvantage and degree of business synergy – Section 319(3)(d), (e) and (f)
The MEU submits that ensuring that both the two cohorts of transferring employees and the non-transferring employees are covered by a single industrial instrument will promote business synergy at the enterprise and promote, rather than have a negative impact on, productivity.
According to the MEU’s application, as WCM already remunerates all cohorts of workers in accordance with the Agreement, there would be no economic disadvantage to the employer in the order being made.
Public interest – Section 319(3)(g)
The MEU make reference to the submissions by the Employer in the Decision, being there is a significant public interest in ensuring there is no differentiation between the terms and conditions of employment being provided to employees within a single cohort at the Daunia mine.
In the context of the Decision, the Employer further submitted that the orders sought were consistent with the “Same Job Same Pay” measures introduced through the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, by ensuring that OS employees receive the higher wages that are paid to workers under the Agreement for the same or similar work.
As such, the MEU submit the same point applies to the order sought here, which would ensure that non-transferring employees performing the same or substantially similar work to the transferring employees.
Conclusion
I have taken into account the MEU’s application, the views provided by the parties, and the matters set out in s.319(3) of the Act. I am satisfied on the material provided, when considered against the matters set out in s.319(3) of the Act, support the making of the order.
An Order to this effect will be issued separately.
COMMISSIONER
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