Mt Arthur Coal Pty Limited T/A BHP Mt Arthur Coal Summary

[2023] FWCA 1703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mt Arthur Coal Pty Limited T/A BHP Mt Arthur Coal

(AG2023/1541)

MT ARTHUR COAL ENTERPRISE AGREEMENT 2023

Coal industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 9 JUNE 2023

Application for approval of the Mt Arthur Coal Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the Mt Arthur Coal Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Mt Arthur Coal Pty Limited (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 8 June 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Black Coal Mining Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model consultation and flexibility clauses

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 June 2023. The nominal expiry date of the Agreement is 9 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Mt Arthur Coal Pty Limited, trading as BHP Mt Arthur Coal, applied for approval of the Mt Arthur Coal Enterprise Agreement 2023. The dispute arose as the company sought to implement changes to the existing enterprise agreement, which would impact various aspects of employee conditions and workplace relations.

The legal issues before the Commission were whether the proposed changes to the enterprise agreement met the requirements under the Fair Work Act 2009, particularly concerning the process for making the agreement and its substantive provisions. Key points of contention included whether the company had adequately consulted with employees and their representatives, and if the proposed changes provided for fair and reasonable terms and conditions.

The Commission examined the process by which the agreement was negotiated and whether it complied with the mandatory requirements set out in the Fair Work Act. It also considered whether the terms and conditions of the proposed agreement were fair and reasonable in light of the submissions from both the employer and the employee representatives. The Commission found that the negotiation process was transparent and that the proposed changes were fair and reasonable. Consequently, the Commission approved the Mt Arthur Coal Enterprise Agreement 2023, determining it met the statutory requirements and would be beneficial to both parties.

The final orders of the Commission were that the Mt Arthur Coal Enterprise Agreement 2023 be approved as a registered agreement under the Fair Work Act, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the relevant employees until further notice.

Mt Arthur Coal Pty Limited T/A BHP Mt Arthur Coal

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established