Anglo Coal (Dawson Services) Pty Ltd - [2025] FWC 1583

[2025] FWC 1583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.318 - Application for an order relating to instruments covering new employer and transferring employees

Anglo Coal (Dawson Services) Pty Ltd

(AG2025/1550)

Mining industry
COMMISSIONER SIMPSON	BRISBANE, 6 JUNE 2025

Application for an order relating to instruments covering new employer and transferring employees

Applications have been made by Anglo Coal (Dawson Services) Pty Ltd (Anglo / the Applicant) to the Fair Work Commission (the Commission) for orders pursuant to s.318 of the Fair Work Act 2009 (the Act).

On 21 May 2025, this matter were allocated to my Chambers. The matter arose from a transaction (namely, a proposed transfer of business which is scheduled to occur on 1 July 2025).

The Applicant sought for this application to be dealt on the papers.

Orders Sought

The Applicant sought orders from the Commission pursuant to section 318 of the Act that the Macmahon Black Coal Mining Agreement 2023 (Macmahon Black Coal Mining Agreement) do not apply to the employment of employees whose employment transfers to the Applicant from Macmahon Contractors Pty Ltd ACN 007 611 485 (Macmahon) and that in lieu the Applicant’s own industrial instrument apply, the Dawson Mines Collective Enterprise Agreement 2024 (Dawson Mines Collective Agreement), with a nominal expiry date of 3 February 2029.

BACKGROUND

Mention/Directions Hearing

A Mention/Directions Hearing was held on 2 June 2025. This was attended by the Applicant, the Applicant’s legal representative, Ms Tamara Lutvey from Ashurst Australia (Ashurst), the Mining and Energy Union (MEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

The MEU and AMWU did not raise any objections to the Applicant seeking permission for legal representation under section 596 of the Act. I granted the Applicant permission for legal representation under section 596(2)(a) of the Act, on the basis that would assist me to deal with the matter more efficiently.

I sought the views of the both the MEU and the AMWU in regard to dealing with this application without any further directions being required. The MEU did not have an objection to the course of action. The AMWU submitted that on the stipulation that members or potential member at McMahon make up a substantially smaller cohort than the MEU and given the MEU did not have an objection, the AMWU did not an objection to the course of action as well.

On basis of the material submitted by the Applicant, I proposed to parties that I would issue a decision in writing, granting the application in terms of the draft order that the Applicant sought and to issue an order to have effect from 1 July 2025.

APPLICANT SUBMISSIONS

The Applicant filed submissions dated 21 May 2025 and the witness statement of Mr Christopher John Newman of Anglo dated 21 May 2025 in support of the Application.

Background

The Applicant will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1583
Decision Date: 6 JUNE 2025

CaseChat Overview and Summary

Anglo Coal (Dawson Services) Pty Ltd applied to the Fair Work Commission for an order that the Dawson Mines Collective Enterprise Agreement 2024 apply to employees transferring from Macmahon Contractors Pty Ltd. The application was pursuant to section 318 of the Fair Work Act 2009, which allows the Commission to make certain orders in the case of a transfer of business. The Commission needed to consider the views of the new employer, the transferring employees, the potential for any employees to be disadvantaged, the nominal expiry date of the agreement, the potential for a negative impact on productivity, whether the new employer would incur significant economic disadvantage, the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer, and the public interest. The Applicant argued that its own agreement should apply to the transferring employees to encourage a single and harmonious workplace culture, promote consistency and certainty in employment terms and conditions, and enhance productivity and efficiency. The unions representing the employees did not object to the application, and the Commissioner found that it was appropriate to grant the application. The order will be issued with the decision.

In Anglo Coal (Dawson Services) Pty Ltd, the Fair Work Commission considered an application by the Applicant for an order that its own enterprise agreement apply to employees transferring from another employer. The Commission considered the views of the new employer, the transferring employees, the potential for any employees to be disadvantaged, the nominal expiry date of the agreement, the potential for a negative impact on productivity, whether the new employer would incur significant economic disadvantage, the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer, and the public interest. The Applicant argued that its own agreement should apply to the transferring employees to encourage a single and harmonious workplace culture, promote consistency and certainty in employment terms and conditions, and enhance productivity and efficiency. The unions representing the employees did not object to the application, and the Commissioner found that it was appropriate to grant the application. The order will be issued with the decision.

Orders