Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009

BHP Coal was not required to consult about the existence or number of surplus employees, which remains its managerial decision. The consultation obligation under cl 32 of the Enterprise Agreement was triggered after identifying the surplus and required BHP Coal to provide a genuine opportunity for employees and representatives to inform and influence the process regarding voluntary redundancies, redeployment, and transfer, but not forced redundancies or the requirement to displace contractors. BHP Coal satisfied its consultation obligations under the agreement, provided sufficient information, and the alleged breaches were not made out.

Parties
Applicant: Construction, Forestry, Mining and Energy Union; Respondent: BHP Coal Pty Ltd
Jurisdiction
Australia
Judgment Date
26 August 2016
Procedural Posture
Application for Civil Penalty for Alleged Breach of Enterprise Agreement / Final Judgment at Trial
Outcome
Application dismissed
Legal Topics
Enterprise Agreement, Consultation Obligations, Redundancy, Fair Work Act 2009 (cth) S 50, Civil Penalty, Workplace Restructuring
Industrial Law Employment Law Enterprise Agreement Consultation Obligations Redundancy Fair Work Act 2009 (cth) S 50 Civil Penalty Workplace Restructuring

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Parties

Construction, Forestry, Mining and Energy Union

Applicant

BHP Coal Pty Ltd

Respondent

Procedural Posture

Application for Civil Penalty for Alleged Breach of Enterprise Agreement / Final Judgment at Trial

Legal Issues

  1. 1 Whether BHP Coal failed to consult with employees and employee representatives in accordance with the consultation clause in the enterprise agreement when offering voluntary redundancies.
  2. 2 Whether BHP Coal breached cl 32 of the Enterprise Agreement and s 50 of the Fair Work Act 2009 (Cth) by not consulting about the number of surplus employees, minimising redundancies, and information disclosure obligations.

Ratio Decidendi

BHP Coal was not required to consult about the existence or number of surplus employees, which remains its managerial decision. The consultation obligation under cl 32 of the Enterprise Agreement was triggered after identifying the surplus and required BHP Coal to provide a genuine opportunity for employees and representatives to inform and influence the process regarding voluntary redundancies, redeployment, and transfer, but not forced redundancies or the requirement to displace contractors. BHP Coal satisfied its consultation obligations under the agreement, provided sufficient information, and the alleged breaches were not made out.

Court Disposition

Application dismissed

Orders

  • The application be dismissed.