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Another defeat for BHP’s dud OS agreements

May 29, 2024

The Fair Work Commission has rejected BHP’s application to approve its Operations Services Production Enterprise Agreement, because key terms including pay rates, hours of work and some entitlements weren’t properly explained to workers.

After the Commission’s decision, BHP has delayed a vote on its Maintenance Agreement.

The Commission found that BHP did their best to bury the detriments of the Production Agreement and keep workers in the dark about the potential loss of important Award conditions by hiding key information in lengthy explanations.

This is the latest legal defeat for OS and a further sign that BHP’s approach in setting up an in-house labour hire subsidiary to provide itself with cheaper labour is dodgy.

Queensland District President Mitch Hughes said the MEU’s position has always been that OS workers deserve a comprehensive agreement with industry-standard pay and conditions, like BHP’s direct employees.

“BHP have said that they will take some time to consider what this decision means for them,” he said.

“Now, BHP either need to do what they should have done in the first place and employ OS workers directly at their BHP coal mines or get back to the table and negotiate a more comprehensive Agreement which has been developed in genuine consultation with the workforce.”

Things that were not found to be properly acknowledged or explained in the Agreement included:

  • Salaries payable under the EA
  • How redundancy would work
  • The effect of the NES on the EA
  • Key award items OS workers should currently be getting but aren’t, including paid time off on Christmas and Boxing Day, and rostering

What the Fair Work Commission said about BHP’s process for consulting on the OS Production Agreement:

The terms that were said to be beneficial to employees were explained in detail a number of times…. In contrast the material was restrained and relatively opaque when referring to the detrimental effects of the Agreement.

Prior to conducting the vote an employer must explain the terms of the proposed agreement and the effects of the agreement to all relevant employees. The explanation is critical in achieving informed agreement. A failure to provide an adequate explanation will undermine that process. I consider this to be the case here. The failure not only to provide an account of the detrimental aspects of the Agreement but to also provide adequate explanations of critical terms of the Agreement going to hours of work and remuneration cannot be considered minor errors.

Read the full decision here.

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