A1 Earthworx Mining & Civil Pty Ltd

[2013] FWC 8420

[2013] FWC 8420

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

A1 Earthworx Mining & Civil Pty Ltd
(AG2013/7859)

A1 EARTHWORX PTY LTD ENTERPRISE AGREEMENT 2012-2016

Building, metal and civil construction industries

COMMISSIONER MACDONALD SYDNEY, 28 OCTOBER 2013

[1] This application was filed on 31 July 2013 by A1 Earthworx Mining & Civil Pty Ltd (the Applicant) and concerns an application pursuant to section 318(1) of the Fair Work Act 2009 (The Act) for orders relating to an instrument covering a new employer (the Applicant) and transferring employees.

[2] The application for an order has been made by the new employer and this satisfies section 318(2)(a) of the Act.

Background

[3] A1 Earthworx Pty Ltd (ABN 91 137 210 470) (the old employer) entered into a partnership with Pybar Mining Services (ABN 96 060 589 433) to form a new business called A1 Earthworx Mining & Civil Pty Ltd (ABN 67 160 665 618). The latter entity is the Applicant.

[4] The employees of A1 Earthworx Pty Ltd have their terms and conditions of Employment governed by the A1 Earthworx Pty Ltd Enterprise Agreement 2012-2016 (the transferring instrument).

[5] The Applicant seeks an order pursuant to section 318(1)(b) that the employees who have transferred from the old employer to the new employer (the Applicant) will continue to be covered by the transferring instrument.

Relevant Legislation

[6] Section 313 of the Act provides:

“313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

...

(3) This section has effect subject to any FWC order under subsection 318(1).”

[7] Section 318 of the Act provides:

“318 Orders relating to instruments covering new employer and transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.”

CONSIDERATION

[8] The FWC sets out below its consideration of the application in light of those matters set out in section 318(3).

[9] Section 318(3)(a)(i) requires consideration of the views of the employer. Upon my request, a Statutory Declaration was provided by James Collins, General Manager, and which supports the application. The Statutory Declaration advises of the formation of a partnership between the old employer (A1 Earthworx Pty Ltd) and Pybar Mining Services. The new business formed by that partnership is A1 Earthworx Mining and Civil Pty Ltd (the Applicant). That Statutory Declaration advises that the employees being transferred to the business of the Applicant are still being engaged under the A1 Earthworx Pty Ltd Enterprise Agreement 2012-2016 (the transferring instrument).

[10] Section 318(3)(c)(ii) requires consideration of the views of the employees. I was provided with a Statutory Declaration of Mr Steven Bannink, Workshop Supervisor, who was and continues to be engaged under the transferring instrument. He advises that he and the existing employees will not be disadvantaged in any way.

[11] Section 318(3)(b) requires consideration as to disadvantage to the employees. The Statutory Declaration of Mr Bannink advises of no disadvantage to employees.

[12] Section 318(3)(c) asks for the nominal expiry date of the transferring instrument and that is 27 July 2016.

[13] Section 318(3)(d) requires consideration of any negative impact on the employer’s workplace if the application was not granted. I was not advised of any negative impact.

[14] Section 318(3)(e) requires consideration of any significant economic disadvantage to the employer if the application was not granted. I was not advised of any significant economic disadvantage.

[15] Section 318(3)(f) requires consideration of the business synergy between the transferable instrument and the existing agreement. This matter is not an issue for consideration.

[16] Section 318(3)(g) requires consideration of the public interest but there was no evidence that the public interest is agitated in this matter.

CONCLUSION

[17] On balance, taking into account each of the matters stipulated in section 318(3), I am satisfied that the Order sought should be granted.

[18] A separate Order will issue [PR543850]. The Order will come into operation in accordance with section 318(4).

COMMISSIONER

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