[2024] FWC 3399 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.739 - Application to deal with a dispute
Mining and Energy Union
vBHP Coal Pty Ltd
(C2024/4351 & C2024/5178)
COMMISSIONER SIMPSON
BRISBANE, 5 DECEMBER 2024
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Whether Respondent has satisfied the requirements of clauses 14 and 11.5 of the BMA Enterprise Agreement 2022 – Whether the Respondent can proceed with the trial of the 7/7 Roster in the Load & Haul Department at Goonyella Riverside Mine.
[1] On 28 June 2024, the Mining and Energy Union (MEU / the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute (C2024/4351) (first application).
[2] On 26 July 2024, the MEU made a separate application to the Commission under s. 739 of the Act to deal with a dispute (C2024/5178) (second application). The second application addressed similar issues to the first application however was filed following discussions between the parties as a means to resolve a dispute over a jurisdictional objection raised in relation application C2024/4351. The MEU seeks orders that the matter is arbitrated and determined by the Commission if the matter is not resolved by conciliation and a roster trial that has commenced be ceased due to:
· The Respondent having failed to comply with the steps required under Clause 11.5 and Clause 14 of the Agreement; and
· The trial is having or may have an effect on affected employees that is harsh, unreasonable or unjust.
[3] In the alternative the MEU seeks the trial to be amended to exclude Coal employees, because the trial is having or may have an effect on affected Coal employees that is harsh, unreasonable or unjust.
[4] BHP Coal Pty Ltd is the Respondent in both the first and second application (BHP / the Respondent).
[5] The relevant Enterprise Agreement is the BMA Enterprise Agreement 2022 (the BMA EA).
[6] The matters did not resolve at conference and the parties agreed for the Commission to move to the arbitration stage of the Dispute Resolution Procedure.
[7] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing before me on Wednesday 9 and Thursday 10 October 2024 at the Mackay Courthouse.
[8] At the Hearing the Applicant was represented by Mr Adam Jacka from the MEU and the Respondent was represented by Ms Catherine Pase, Counsel, instructed by Ms Leyla Dixon and Ms Bianca Laird of Minter Ellison Lawyers.
[9] The MEU relied on the witness statements and reply statements of Mr Darren Franklin (Machine Operator),[1] Mr Peter Johnstone (Mine Operator),[2] Mr Wayne Goulevitch (Mine Employee), [3] Mr Shawn Kenny (Mechanical Operator),[4] Mr Christopher Hubner (Mine Operator),[5] Mr Damien Kinnane (Mechanical Operator),[6] Mr Derrick Pagett (Mechanical Operator),[7] and Ms Cindy Stewart (Mine…
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- Case
- [2024] FWC 3399
- Decision Date
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