The Federal Court has dismissed an appeal by Whitehaven Coal and three other mining companies against a Fair Work Commission (FWC) ruling on multi-employer bargaining.
Whitehaven Coal, Peabody Energy, Ulan Coal Mines and Great Southern Energy had challenged the FWC decision from August last year, which required them to engage in multi-employer bargaining with their workers.
Led by Whitehaven as the applicant, the companies appealed to the Federal Court in their case against the Association of Professional Engineers, Scientists and Managers Australia (APESMA), a union representing engineering industry employees including scientists, coal miners, managers and professionals.
The appeal was dismissed on September 5, with Justice Collier, Justice Snaden and Justice Raper presiding.
The mining companies argued in the Fair Work hearing that multi-employer bargaining was not appropriate as each of the mines had unique working conditions, and that they should be able to negotiate pay and conditions with their employees independently.
In the Fair Work case, the Collieries’ Staff and Officials Association (CSOA) won the right to undertake multi-employer bargaining for its members across three mine sites owned by the different companies. APESMA had filed the case with the FWC on behalf of the CSOA.
The three mines included in the application were: Peabody Energy Australia Coal at the Wambo underground coal mine; Ulan Coal Mines (a wholly owned subsidiary of Glencore Coal) at the Ulan No.3 underground coal mine; and Whitehaven Coal at the Narrabri coal mine.
The Minerals Council of Australia (MCA) said it was “deeply disappointed” by the Federal Court’s decision to dismiss the appeal, warning that the ruling could set a precedent “that will undermine enterprise bargaining and jeopardise much-needed investment across the mining industry”.
“In its August 2023 decision, the Commission found that the 2022 amendments to the Fair Work Act meant competing businesses mining the same commodity in the same state shared a sufficient ‘common interest’ to satisfy the legal test for forcing them into multi-employer bargaining,” MCA chief executive officer Tania Constable said.
“The MCA intervened in the initial Commission proceeding to argue that it was inappropriate for rival mining companies, with vastly different operations and workforce management arrangements, to be compelled into bargaining against their will.
“The MCA maintains that multi-employer bargaining is fundamentally unsuited to the mining industry. It is unrealistic to believe that competing businesses with differing operations and priorities will ever be able to agree to uniform terms and conditions, let alone ones that provide superior benefits to the alternatives.”
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