THE ongoing saga between BHP shelf companies OS [Operations Services] MCAP Pty Ltd (OS MCAP) and OS ACPM Pty Ltd (OS ACPM) and the Fair Work Commission (FWC) has taken another turn this morning, with the OS's Production and Maintenance Agreements being dismissed.
They had initially been approved on December, 19 2019 by FWA's Deputy President Boyce, but was later quashed after a Full Bench of Vice President Hatcher and Deputy Presidents Booth and Colman upheld an appeal by The Construction, Forestry, Maritime, Mining and Energy Union, The Australian Workers' Union, The Australian Manufacturing Workers' Union and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
OS ACPM and OS MCAP were given the opportunity to provide written responses to FWA's concerns. On July 13 the Full Bench received those submissions, and concluded their second and third categories of concern had been adequately addressed, but the first category had not.
The companies then attended two hearings and were allowed to submit more written responses, but were ultimately unable to satisfy FWA's worries regarding alternative rosters, part-time rates, part-time hours and casual rates.
A number of issues plagued the matter of alternative rosters. The FWC were not satisfied by OS ACPM and OS MCAP's proposed undertaking that the clause allowing them to introduce alternative rosters [9.5] would remain in the Agreements but not be exercised, due to an understanding that was not the only way the companies could change employee's rosters.
Individual Flexibility Arrangements (IFA), which can only be approved should a new roster be beneficial to the employee, could still be used, but the Commission believes it would be 'impossible to determine' whether someone would be better off due to an 'absence of any prescription of hourly rates of pay'.
It was also understood alternative rosters could also be offered to a new employee, negating the need to exercise clause 9.5.
"Where an employee is engaged pursuant to a contract of employment under which they are to work according to an alternative roster, no use of the power in clause 9.5 of the Agreements would be necessary to require them to do so," stated the Commission.
The concerns about part-time rates were also not properly addressed by the companies, with FWA taking arguing clause 5.2 - 'Part time Employees will receive pro rata leave and other entitlements on the basis of a 35 ordinary hour week' - was not clear enough.
"It is not too much to ask that employees being asked to vote upon a proposed enterprise agreement have explained to them what the rates of pay under the agreement (whether on an hourly, weekly or annual basis) will be. As stated in the first decision, no explanation of this nature was provided by OS MCAP or OS ACPM," said the FWA.
A lack of clarity and remaining issues in regards to alternative rosters returned to cause a rejection of undertakings designed to ease concerns for part-time hours and casual rates, meaning OS MCAP and OS ACMP had not fixed four of the matters the Commission were unsatisfied with from the last hearing.
It was also found the Agreements were not genuinely agreed to by employees covered by them. This contributed to the FWA making their decision and issuing the following statement.
"Accordingly, the Agreements cannot be approved. We dismiss the applications for approval of the Production Agreement and the Maintenance Agreement," they said.
Vice-president of Operations Services, Mark Swinnerton, moved quickly to ensure their employees there was no need to worry.
"This decision does not impact the number of roles, the security, or the terms and conditions of Operations Services employees' roles," he said.
"In the coming days, Operations Services' focus is engaging with its workforce about any next steps.
"Most importantly, whilst undertaking this process we want to assure all of our 3400 Operations Services employees that their terms and conditions of employment as set out in their contracts of employment will not change.
"Employees will continue to receive a permanent, well paid role with BHP Operations Services; full leave entitlements, including to annual leave, sick leave, long service leave and up to 18 weeks paid parental leave; [and] access to BHP's short term incentive and employee share schemes.
"Operations Services will take time to consider the findings of the Full Bench before determining next steps in respect of its enterprise bargaining options, and we will communicate with our employees along the way."