Application for approval of the Byrnecut Australia Enterprise Agreement 2025

[1] Byrnecut Australia Pty Ltd has applied for the approval of an enterprise agreement known as the Byrnecut Australia Enterprise Agreement 2025. The application was made under s 185 of the Fair Work Act 2009 (Cth). The Agreement is a single enterprise agreement. The Commission can only approve the Agreement if the requirements in ss 186 and 187 are met.

[2] Several Employee Bargaining Representatives oppose the Agreement's approval on the general grounds Byrnecut did not engage in the bargaining process sufficiently and employees were therefore disadvantaged in the negotiation and voting process.

[3] In support of its application for approval, Byrnecut relies on evidence from Patrick Boniwell, its Managing Director. EBRs Caitlin Calman, Eddie Joyce, Glenn Dyson and Michael Hodshon filed short materials that I have treated as submissions and witness statements.

[4] After the filing of material, I asked the parties if they sought to be heard on the matter. They indicated they were content for the matter to be dealt with on the papers. I am satisfied it is appropriate to do so.

[5] Having considered the evidence and submissions of the parties, I find that the Agreement meets the requirements of the Act and can be approved.

[6] Byrnecut relies on the uncontested evidence of Mr Boniwell, which relevantly provides as follows:

• (a) Negotiations for the Agreement commenced in March 2025. A presentation on negotiating a new enterprise agreement was presented to employees on each site. Site Project Managers were instructed to communicate with employees that:

  1. The 2021 enterprise agreement was due to expire on Monday 16 June 2025.

  2. Byrnecut's intention was to bargain for a replacement agreement.

  3. Employees had a right to appoint a bargaining representative.

• (b) A letter with the above information was sent to all employees on Monday 7 April 2025. This letter also outlined the process of negotiation and voting on a new enterprise agreement.

• (c) On Monday 7 April 2025, Byrnecut also sent to employees an initial draft version of the proposed enterprise agreement; a FAQ document; an explanatory document; and links to the existing enterprise agreement, the National Employment Standards and the Mining Industry Award 2020. Printed copies of these documents were made available to employees on each site.

• (d) On Friday 11 April 2025, Mr Boniwell received an email from the Project Manager at the Abra site, with a list of employee questions that had arisen about the enterprise agreement negotiations. Mr Boniwell understood that the Project Manager had answered the questions.

• (e) During April and May 2025, Mr Boniwell and five Operations Managers attended each of Byrnecut's 17 sites to discuss the replacement enterprise agreement with employees.

• (f) Mr Boniwell estimates that there were over 100 presentations on the replacement enterprise agreement between all sites and locations, including 20 to 30 that he personally delivered. Mr Boniwell included a register that details the sites, who gave presentations and what dates the presentations were given.

• (g) The presentations were delivered at toolbox meetings as onsite employees must attend toolbox meetings. During these presentations, questions were encouraged and received from the floor. Most questions were answered directly at that point in time. Questions that required further consideration were answered via an updated FAQ document. Mr Boniwell provided a copy of the latest FAQ document, dated Monday 26 May 2025. This document has extensive questions from employees and responses from Byrnecut.

• (h) Mr Boniwell's evidence is that in between Wednesday 30 April to Tuesday 6 May 2025, he was told that a Senior Superintendent at the Prominent Hill site was approached by a bargaining representative who asked for their crew to have time allocated to discuss the Agreement as a group. This was agreed to and arranged. Further, this bargaining representative also asked for a suggestion box to be set up so that questions could be submitted to bargaining representatives. This was also organised.

• (i) In early May 2025, Mr Boniwell was informed that a total of 31 employees had been nominated as bargaining representatives, covering 10 out of the 17 sites covered by the Agreement.

• (j) There were two bargaining meetings on Tuesday 13 and Thursday 15 May 2025. Mr Boniwell's evidence is that there were many issues discussed, where agreement was reached on some of the issues, but not all.

• (k) At the bargaining meeting on Thursday 13 May 2025, Mr Hodshon asked if he could email Mr Boniwell questions regarding the negotiations. Mr Hodshon did so on Friday 14 May 2025, and Mr Boniwell replied on Thursday 22 May 2025. There was no further correspondence.

• (l) During the bargaining meeting on Tuesday 15 May 2025, Ms Calman asked questions regarding the calculation of leave entitlements. Mr Boniwell's recollection is that he agreed to disagree with Ms Calman's position, but that he would look into the issue. Mr Boniwell's evidence is that there was no change to the words regarding leave entitlements after this.

• (m) After the bargaining meetings, updated FAQ lists were sent to the workforce outlining additional benefits that would be offered as part of the negotiation process. This included a new annual leave accrual rate, an increase in the number of paid compassionate leave, and an increase in the number of paid secondary leave days.

• (n) On Friday 30 May 2025, Ms Calman emailed seeking the email addresses for the other EBRs. Ms Calman was advised that personal information could not be shared without consent, but instead, her contact details could be shared to the other EBRs. This was arranged.

• (o) After receiving feedback from the EBRs and workforce, Byrnecut decided to put the proposed agreement to a vote. The access period commenced on Tuesday 3 June 2025.

• (p) The vote was conducted by GoVote and closed on Wednesday 11 June 2025. Out of 3,113 eligible voters, 1,974 voted. 1,362 voted 'yes', with 612 voting 'no'.

[7] I accept Mr Boniwell's evidence. It was cogent, comprehensive, and supported by contemporaneous documentation such as emails.

[8] Ms Calman is an EBR for the Carrapateena Mine. Her objections to the Agreement's approval are as follows:

• (a) Byrnecut did not allow the EBRs the opportunity to formally discuss the terms of the Agreement with the crews they were representing.

• (b) The EBRs did not have a formal opportunity to gather a 'bargaining list' from the employees to present to Byrnecut.

• (c) Byrnecut did not give the EBRs each other's contact details. This made communication difficult given the geographical spread of the employees and EBRs.

• (d) All communication between the EBRs was at Byrnecut's discretion. As Byrnecut was present during bargaining meetings/communications, this made it difficult for the EBRs to formulate bargaining proposals.

• (e) The Agreement is completely of Byrnecut's creation with little to no genuine input from the workforce or the EBRs.

• (f) During two of the bargaining meetings, Ms Calman raised concerns regarding how annual leave and personal leave were paid out. Ms Calman was told that the matter would be 'looked into'. She never received a response. Ms Calman says this was one of many concerns that Byrnecut did not genuinely consider or respond to.

[9] Ms Calman submits that due to the above considerations, the Agreement cannot be approved as the outcome of the vote is not 'sufficiently representative of the genuine interest of the employees.'

[10] Mr Joyce is an EBR. Mr Joyce supports Ms Calman's contentions. Mr Joyce also submits that out of the 17 sites covered by the Agreement, only 10 had an EBR. Mr Joyce says this supports Ms Calman's submission that there was no formal opportunity for the representatives to obtain 'a bargaining list from site wide representatives'.

[11] Mr Dyson is an EBR for Prominent Hill and supports Ms Calman's contentions. Mr Dyson also made the following objections to the Agreement's approval:

• (a) During meetings where the Agreement was discussed, there were no sign on sheets. Therefore, Byrnecut cannot be sure who attended meetings and who received the information.

• (b) Byrnecut did not follow up on issues raised by EBRs during negotiation meetings.

[12] Mr Hodshon is an EBR for the Carrapateena Mine. Mr Hodson raises the following issues with the Agreement's approval:

• (a) Only two-thirds of Byrnecut sites covered by the Agreement had an EBR, which means one third missed out on information about the Agreement. Further, Mr Hodshon has concerns that employees did not read the Agreement or do not understand it.

• (b) Mr Hodshon did not see the Byrnecut representatives at the Carrapateena site during the access period.

• (c) There is nothing in the Agreement that tells employees what rates they are to be paid. There are concerns regarding Byrnecut not paying people the correct rate and not complying with enterprise agreements and the Act.

• (d) Byrnecut did not put effort into the negotiations, informing employees about the Agreement, or allow for more EBR meetings.

[13] I understand and appreciate that Ms Calman, Mr Joyce, Mr Dyson and Mr Hodshon (and other EBRs) are disappointed with the bargaining process and result. However, much of their complaints are due to their misunderstanding of the bargaining process. The EBRs seem to have assumed that it is the responsibility of the employer to facilitate the EBRs discussions with each other and the workforce. This is incorrect. It might be a different situation if there was a contention that there had been requests and those requests were denied, but there is no evidence or submission from the EBRs to this effect. I do not find that any of the objections raised are made out or are appropriately addressed to the approval requirements in the Act.

[14] For completeness, the objections of the EBRs can be grouped and dealt with as follows:

[15] Not all sites covered by the Agreement had an EBR: the Act does not compel employees to nominate a bargaining representative. Having examined the documentation Byrnecut sent out, I am satisfied that employees were appropriately informed of their right to appoint a bargaining representative if they wished to do so.

[16] Byrnecut did not facilitate opportunities for the EBRs to discuss the Agreement with the workforce: it is unclear from the materials, but it seems that the grievance is that Byrnecut did not actively set aside time for the EBRs to have their own meetings. There is no evidence from Ms Calman, Mr Joyce, Mr Dyson or Mr Hodson that they made any such requests. From Mr Boniwell's evidence, where an EBR or employees requested to have time to discuss the negotiations, this was granted. It is not a requirement under the Act that an employer actively set aside time for EBRs to meet where a request has not been made.

[17] Byrnecut did not facilitate the opportunity for the EBRs to gather a 'bargaining list': it was not explained what a bargaining list is, but I assume that it is a log of claims. Again, it is not a requirement under the Act that an employer facilitate this.

[18] Byrnecut did not give the EBRs each other's contact details: an employer is not obligated to disclose an EBR's contact details to other EBRs unless there is consent. Byrnecut sharing Ms Calman's details with the other EBRs with her consent was an appropriate course of action.

[19] The Agreement had little to no genuine input from the EBRs or employees: it is difficult to assess this claim given the lack of supporting evidence from the EBRs. It was also not explained how this relates to the approval criteria in the Act.

[20] Byrnecut did not listen to or follow up on the EBRs concerns: having considered the submissions and evidence of the parties, I find that the parties disagreed on clauses and how conditions should operate during the negotiations. This is common in bargaining.

[21] There was insufficient consultation about the negotiation process and Agreement: I accept Mr Boniwell's uncontested evidence regarding the lengthy and detailed process Byrnecut underwent to speak to employees across the 17 sites about the negotiation process. I also accept Mr Boniwell's evidence regarding the materials that were sent out and what Byrnecut did in response to any queries that were received. I do not find that this objection has any merit.

[22] Byrnecut have not complied with provisions under the existing/prior enterprise agreements: there was no evidence in support of this contention. It was also not explained how this relates to the approval criteria in the Act.

[23] Byrnecut has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[24] In compliance with s 190(4) of the Act, the bargaining representatives' views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[25] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying evidence, 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.

[26] The Agreement was approved on 14 October 2025 and, in accordance with s 54, will operate from 21 October 2025. The nominal expiry date of the Agreement is 14 October 2029.

[27] Section 218A of the Act allows the Commission to correct or amend errors, defects or irregularities. It is a discretionary power, and the Commission must first be satisfied that the identified errors or amendments sought are obvious errors, defects or irregularities.

[28] Appendix 3 in the Agreement outlines the Minimum Hourly Rates and includes a column outlining the rates in the previous enterprise agreement, which have been marked with strikethrough. Byrnecut says that this is a typographical error that should not have been included in the Agreement. Byrnecut seeks to have this corrected so that it is deleted and only shows the current rates of pay.

[29] I am satisfied that the amendments should be made and that it is appropriate to do so in accordance with s 218A. The variation will operate from the date the Agreement commences.

[30] The Agreement attached to this Decision is the Agreement as varied and will operate from 21 October 2025. The nominal expiry date of the Agreement as varied is 14 October 2029.

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