The decision means BHP must comply with new pay and conditions for workers
The Federal Court of Australia has refused an application by mining giant BHP to temporarily halt new pay and conditions orders for more than a thousand workers at three Bowen Basin coal mines.
The decision means BHP must comply with the new pay and conditions starting September 14, which are estimated to increase annual remuneration by about 15% for affected employees.
The ruling stems from after the Fair Work Commission (FWC) had earlier determined that labour hire employees at the mines, operated by BHP, should be covered by the same enterprise agreement as directly employed staff.
But BHP is arguing that the FWC made errors in interpreting whether the work performed constituted the "provision of a service" or the "supply of labour" under the Fair Work Act.
Ahead of a full hearing on the matter, BHP sought a court order to stay the FWC's decision, citing concerns that if it ultimately won the case, it would be extremely difficult and costly to recover the "top-up" payments made to workers in the interim.
According to BHP, the estimated top-up payments could exceed $28.4 million, with the final amount depending on whether higher or lower classification levels under the enterprise agreement apply to certain employees.
Court rejects stay request
The Federal Court ruled that while recovering overpayments would be complex, it would not be impossible.
The Court emphasised that stays of industrial tribunal orders are only granted in exceptional circumstances, primarily where refusing a stay would render any final relief futile.
It noted that the interests of employees in receiving their entitlements must be given significant weight, and that the main legal challenge was already scheduled for a hearing in November.
"While I am satisfied that the applicants have established a prima facie case, I am not persuaded that there is a strong case on the limited argument that was presented," the court said.
A win for workers
A spokesperson from BHP told the Australian Financial Review (AFR).they acknowledge the Federal Court's decision, but noted that the stay request was to "avoid unneccesary complexity and confusion" for its workforce.
"We acknowledge the Federal Court's decision and will adhere to the Orders while the appeal progresses," the spokesperson said.
The Mining and Energy Union (MEU) said the decision is a massive win for workers.
"BHP has spent millions on lawyers to avoid paying coal miners fairly. Today the Court has once again made it clear: time’s up, pay up," said MEU Queensland District President Mitch Hughes in a statement.
"From Sunday, labour hire mineworkers at BHP’s Queensland mines will finally start earning the pay they deserve – the same as the person working next to them, doing the same job."
The union also urged the mining giant to drop its appeal to the Federal Court.
"Kmart and Qantas have already paid up. Plenty of mining companies have accepted their Same Job Same Pay orders and paid up. BHP has even accepted Same Job Same Pay at its Mt Arthur mine in NSW," Hughes said. "BHP should drop its appeal. Time's up, pay up."
