BHP’s reckless approach to managing their workforce has been shown up again, with a succession of legal decisions going against them.
In late October, we were successful in having two members reinstated at BHP Central Queensland coal mines, after the Fair Work Commission found multiple deficiencies in BHP’s investigations and treatment of workers.
In the first matter, our member had been dismissed for fighting with another worker. The Fair Work Commission found the dismissal was harsh, unjust and unreasonable, that our member was acting proportionately in self-defence and was not given a proper opportunity to respond to allegations against him. BHP appealed this decision, but the Fair Work Commission refused permission to appeal based on BHP’s failure to establish errors in fact or law. The decision to reinstate the member was upheld
In the second matter, our member was dismissed following allegations over behaviour. In this matter, the Fair Work Commission found the allegations warranted a warning but not a dismissal and that BHP’s investigation was flawed, with key witness statements ignored and key evidence misinterpreted. Critically, BHP ignored the fact that our member’s behaviour was in response to concerns about harassment, which he had repeatedly sought to raise but had not been addressed by BHP.
We are very pleased that these MEU members have been able to have their matters dealt with by the Fair Work Commission. However, they point to a larger pattern of shortfalls by BHP when it comes to legal obligations to their employees.
The MEU has invested considerable resources in recent years pursuing BHP in the courts over failure to treat or pay workers properly. And while we are pleased at the series of wins we’ve had for members, we would prefer it if BHP did the right thing in the first place.
In September, labour hire workers at BHP Queensland coal mines finally started receiving their ‘Same Job Same Pay’ pay rises, after the Fair Work Commission rejected BHP’s attempts to further delay the pay rises until after a Federal Court challenge is heard. These pay rises are a victory over BHP’s considerable efforts to prevent Same Job Same Pay applying at its worksites – especially for employees of its in-house labour hire provider Operations Services.
So far, the courts have agreed with the MEU that labour hire workers at BHP sites are eligible for Same Job Same Pay because they meet definitions in federal legislation.
Even while grudgingly paying the higher rates, MEU members at Peak Downs, Saraji and Goonyella Riverside are now telling us that the rates they are receiving may not be in line with the rates they are entitled to under the BMA Central Agreement. It seems that BHP is taking the narrowest, meanest interpretation of the BMA Central Agreement to minimise pay rises for experienced labour hire employees.
The MEU is currently investigating pay rates and looking at our legal options to ensure workers receive their full entitlements. (If you’re a member and think this applies to you, reach out!)
If we end up in court, history is on the Union’s side. So far, we’ve been successful taking on BHP over Award breaches for OS workers, public holiday entitlements, approval of OS Enterprise Agreements and Same Job Same Pay – as well as multiple wins for individual members.
It seems that when it comes to managing their people, BHP’s strategy is to do what suits themselves and then wait and see if the Union takes them to court. We’ll continue to do so – but BHP may want to consider getting better advice if they want to stem the flow of findings against them.
Mitch Hughes
President Mining and Energy Union Queensland District
