s.318 - Application for an order relating to instruments covering new employer and transferring employees

Application for orders relating to instruments covering new employer and transferring employee

• [1] An application has been made by BHP Coal Pty Ltd (BHP/the Applicant) to the Fair Work Commission (the Commission) for an order pursuant to s.318 of the Fair Work Act 2009 (the FW Act).

• [2] The Applicant is seeking orders that under s. 318 of the Act:

(a) Pursuant to section 318(1)(a) of the FW Act, the BMA Caval Ridge Enterprise Agreement 2023 (Caval Ridge EA) being a transferable instrument that would, or would be likely to, cover the Applicant and Rosina Tati (Transferring Employee), because of section 313(1)(a) of the FW Act does not, and will not, cover the Applicant and the Transferring Employee;

(b) Pursuant to section 318(1)(b) of the FW Act, an enterprise agreement, being the BMA Enterprise Agreement 2022 (BMA EA) (or any successor agreement) does, and will, cover the Transferring Employee in respect of their employment with the Applicant; and

(c) Pursuant to section 318(4) of the FW Act, the orders shall come into operation on the day on which the orders are made or the time when the Transferring Employee becomes employed by the Applicant, whichever is the later date.

• [3] In support of this Application, the Applicant relies on the Form F40 from Ms Libby Defranciscis, Principal Employee Relations of the Applicant dated 3 March 2025.

• [4] The Applicant is part of the BHP Group, which owns 50% of the BHP Mitsubishi Alliance Pty Ltd (BMA). The other 50% is owned by Mitsubishi Development Pty Ltd. BMA currently manages a number of metallurgical coal mines in Central Queensland's Bowen Basin, including:

1. Goonyella Riverside Mine;
2. Peak Downs Mine;
3. Saraji Mine; and
4. Blackwater Mine,

• [5] The Applicant is an entity of the BHP Group which employs employees to work at the Mines. The BMA EA covers and applies to:

1. employees of the Applicant who perform work at the Mines which is covered by Schedule A of the Black Coal Mining Industry Award 2020 (Award); and

1. who are members or eligible to be members of any of the Unions (being the Mining and Energy Union (QLD District) (MEU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union) (AMWU); and who are engaged at the Mines in the classifications prescribed by the BMA EA.

• [6] The Transferring Employee is currently employed by Central Queensland Services Pty Ltd (CQS) as an Operator Production at Caval Ridge Mine (Current Role). CQS and the Applicant are associated entities within the meaning of section 311(6) of the FW Act (and will be when the Transferring Employee commences employment with the Applicant).

• [7] On 27 February 2025, the Applicant provided the Transferring Employee with an information pack including:

1. An offer of employment with the Applicant as an Semi-Autonomous Dozer Operator;

1. outlined the Applicant's intention to seek a section 318 order so that the BMA EA would apply in respect of the Transferring Employee's employment with the Applicant (as opposed to the Caval Ridge EA)];

1. explained that if the section 318 order sought in this Application is not granted, then the Caval Ridge EA may continue to apply to their employment with the Applicant;

1. asked the Transferring Employee to indicate by return email whether they support the Applicant's application for a section 318 order, and the application of the BMA EA to their employment with the Applicant;
2. informed the Transferring Employee that if they had any questions about the section 318 application or their proposed employment with the Applicant, they should raise these questions with the hiring team; and

1. A document comparing the terms of the BMA EA against the terms of the Caval Ridge EA (which provides links to both the instruments).

• [8] The offer of employment made to the Transferring Employee:

1. Is on terms and conditions no less favourable overall than their current terms of employment with CQS under the Caval Ridge EA. If the section 318 order is granted and the BMA EA applies to their employment with the Applicant, they will be subject to terms and conditions which are in a number of respects more beneficial than their current terms with CQS under the Caval Ridge EA;

1. Is an offer of permanent full-time employment; and

1. As at the date of this Application, has been accepted.

• [9] On 13 March 2025 my Chambers sought the views of the Transferring Employee as well as the MEU, the AMWU and the CEPU regarding this application.

• [10] To date, the Transferring Employee has not provided their views. On 21 March 2025, the CEPU confirmed they did not seek to be heard in relation to the Application. On the same day, the AMWU confirmed they did not have a view on whether the orders sought should be made and did not seek to be heard on the matter. No response was received from the MEU.

• [11] Section 318(3) of the Act sets out those matters the Commission must have regard to in determining if the orders sought should be granted.

318 Orders relating to instruments covering new employer and transferring employees

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement - an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award - an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement - the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

• [13] The Applicant wishes to ensure all its employees who perform work at the Mines, which is of the same kind as will be performed by the Transferring Employees in the New Role, are covered by a common set of terms and conditions, which is currently achieved by the BMA EA.

• [14] The Applicant seeks to standardise conditions so that all of its employees (the Transferring Employee and its other employees) who are performing substantially the same work at the Mines are covered by the same industrial instrument, which will enable business synergy and mitigate the negative impact on productivity and work relationships of having to manage and administer multiple employment arrangements with employees performing the same or substantially the same work within the same employing entity.

• [15] Moreover, in the Applicant's view, granting the Orders will:

1. Create employment simplicity by having the one industrial instrument apply to all employees of the Applicant at the Mines;
2. Align rostering arrangements across the Mines;
3. Create operational synergies around standard crib times and shift duration, allowing for further operational efficiencies;
4. Create cultural synergies and mitigate any disharmony within the workforce at the Mines and concerns from employees doing the same or similar work as to why two different sets of terms and conditions apply; and
5. Mitigate the need for additional and complex payroll standards and requirements.

318(3)(a)(ii) - views of the employees who would be affected by the order

• [16] The Transferring Employee did not provide their views in response to the email sent from my Chambers.

• [17] The Form F40 states that when the Transferring Employee received their offer of employment, they also received the following information to permit them to make an informed decision as to whether to support this Application, including:

1. outlined the Applicant's intention to seek a section 318 order so that the BMA EA would apply in respect of the individual's employment with the Applicant (as opposed to the Caval Ridge EA);
2. explained that if the section 318 order sought in this Application is not granted, then the Caval Ridge EA) may continue to apply to their employment with the Applicant;
3. asked the Transferring Employee to indicate by return email whether they support the Applicant's application for a section 318 order, and the application of the BMA EA to their employment with the Applicant; and
4. informed the Transferring Employee that if they had any questions about the section 318 application or their proposed employment with the Applicant, they should raise these questions with the hiring team;

1. A document comparing the terms of the BMA EA against the terms of the Caval Ridge EA (which provides links to both the instruments).

• [18] The F40 goes on to state that the Transferring Employee has:

1. Indicated their support for the Applicant's application to the Commission for the Orders sought, and the application of the BMA EA to their employment. A copy of the confirmation email from the Transferring Employee was included in the application;
2. Accepted the offer of employment with the Applicant to commence on 9 May 2025.

• [19] The Applicant submits on this basis, the Commission should be satisfied that the Transferring Employee consents to, and/or supports, the Application.

318(3)(b) - whether the affected employees will be disadvantaged by the order

• [20] The Applicant states that the Transferring Employee will not be disadvantaged in relation to their terms and conditions of employment when employed by the Applicant, noting there are numerous aspects of the BMA EA which are more beneficial than the terms of the Caval Ridge EA.

• [21] A comparison of the key terms and conditions of the BMA EA against the Caval Ridge EA was provided along with the application in support of the above.

• [22] The nominal expiry date of the Caval Ridge EA is 11 May 2027. While the nominal expiry date of the BMA EA is 13 January 2026. The Applicant submits the Transferring Employee will be able to participate in any future bargaining process to the renew the BMA EA.

• [23] The Applicant submits that it would cause a negative impact on productivity of the Applicant's workplace if the Orders sought are not made, as the Applicant would be required to:
  1. Maintain two separate time sheeting activities across the Production workforces which will create additional administrative burden for site administrators and increase risk of inaccuracies; and

1. Maintain two different sets of terms and conditions for the one workforce and which, for the Transferring Employee, would be inferior in key respects, as noted above, to the rest of the Applicant's employees at the Mines. This has the potential to lead to disharmony within the workforce and questions from employees working side-by-side with each other as to why two different sets of terms and conditions apply between employees doing the same or substantially the same work at the same site for the same employer.

• [24] The Applicant further submits that if the Orders were to be granted it could only have a positive impact on productivity as the BMA EA is specific and bespoke to the Mines and is therefore better suited to the Applicant's operations.

• [25] Productivity benefits will also flow from having a single unifying instrument (the BMA EA) covering the Applicant's workforce who perform work covered by Schedule A of the Award, both the Transferring Employee and the other employees of the Applicant. These include:
  1. Avoiding the cost and administrative burden of the Applicant having to be conversant and comply with two industrial instruments for an otherwise undifferentiated workforce;
  2. Avoiding maintaining the relevant rostering, payroll and IT systems, attached to those two instruments, for this particular workforce; and
  3. The negative impact on productivity arising from the administrative and compliance burden on Supervisors of having to familiarise themselves and comply with distinct regimes under the two instruments (e.g. dispute settlement procedures, consultation and change procedures and redundancy requirements).

• [26] The Applicant therefore submits productivity would be negatively impacted if the proposed Orders are not granted.

318(3)(e), (f) - economic disadvantage and degree of business synergy

• [27] The Applicant submits that should the transferable instrument cover the Applicant, this would cause economic disadvantage as operational efficiencies would be minimized, and potential loss of productivity from industrial disharmony at the Mines would be increased.

• [28] The Applicant submits that there is not a great degree of business synergy between the BMA EA and the Caval Ridge EA as they provide for different employment conditions. The BMA EA is customised to the Applicant's specific business operations across the Mines, whereas the Caval Ridge EA befits the engagement of employees at the Caval Ridge Mine.

• [29] The Applicant submits that maintaining a cohesive, harmonious and productive workplace is a matter of public interest, particularly for a large institution like the Applicant which has a significant workforce of more than 2,000 employees at the Mines.

• [30] Further, the Applicant's interests in enhancing productivities through the proposed Orders are aligned with those of the Transferring Employee, given the BMA EA provides terms and conditions which are no less favourable overall, and in a number of instances more beneficial than those under the Caval Ridge EA. This is supported by the fact that the Transferring Employee, who was provided with an explanation that the Applicant would be making the Application, agreed to support it.

• [31] The longer-term interests of the Transferring Employee are likely to be better served by being treated as an integrated agreement-covered employee together with their colleagues who are covered under the BMA EA. This is likely to enhance their ability to participate in bargaining for new terms and conditions of employment around the nominal expiry date of the BMA EA.

• [32] There are therefore no issues of public interest in this matter that would impact against the Orders sought being made.

• [33] I have reviewed the application documentation, and the accompanying material provided. These documents outline the circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide for a proper basis for the making of the orders sought.

• [34] I am satisfied that the requirements of s.318 of the Act have been met. Orders will be issued with this Decision.

Printed by authority of the Commonwealth Government Printer