Mining and Energy Union v BHP Coal Pty Ltd - [2024] FWC 3399

[2024] FWC 3399

FAIR WORK COMMISSION

DECISION
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mining and Energy Union
v
BHP 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 3399
Decision Date: 5 DECEMBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, the Mining and Energy Union (MEU) made two applications seeking to arbitrate a dispute with BHP Coal Pty Ltd (BHP) regarding a proposed roster change at Goonyella Riverside Mine. The applications were consolidated. The MEU argued that the Respondent had failed to comply with clauses 11.5 and 14 of the BMA Enterprise Agreement 2022 (the Agreement) in implementing a 7/7 roster (7 days on/7 days off) in the Load & Haul Department. The MEU further contended that the trial of the 7/7 roster was harsh, unreasonable or unjust and contrary to the spirit of continuous improvement. The questions for arbitration were whether BHP could proceed with the trial under the Agreement and whether the trial had an effect on affected employees that was harsh, unreasonable or unjust and contrary to the spirit of continuous improvement. Commissioner Simpson concluded that BHP had not failed to comply with the requirements of the Agreement in implementing the trial and that the trial was not so unreasonable as to be contrary to the spirit of continuous improvement. The dispute was dismissed.

Orders