Application by Bluestone Mines Tasmania Joint Venture Pty Ltd

[2016] FWC 1929

[2016] FWC 1929

DECISION

Fair Work Act 2009
s.320 - Application to vary a transferable instrument - agreement
Bluestone Mines Tasmania Joint Venture Pty Ltd
(AG2016/2612)
Tasmania
COMMISSIONER LEE	MELBOURNE, 31 MARCH 2016
Application to vary a transferable instrument - agreement.

[1]        An application has been made by Bluestone Mines Tasmania Joint Venture Pty Ltd

(the Applicant) to the Fair Work Commission (the Commission), pursuant to section 320 of

the Fair Work Act 2009 (the Act), to vary the Barminco (Tasmania) Enterprise Agreement

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1. (the transferable instrument).

[2]        The transferable instrument is an enterprise agreement made pursuant to an application

under section 185 of the Act.

[3]        The Applicant is insourcing its mining function and subsequently transferring

employees will be covered by the transferable instrument. The purpose of the application is to

allow transferring employees to be subject to the uniform payroll system of the Applicant.

[4]        The Applicant is the new employer and has made the application pursuant to

s.320(3)(a) of the Act as a person who is, or is likely to be, covered by the transferable

instrument.

[5]        Section 320 of the Act provides as follows:

“320 Variation of transferable instruments

Application of this section

(1) This section applies in relation to a transferable instrument that covers, or is

likely to cover, the new employer because of a provision of this Part.

Power to vary transferable instrument

(2) The FWC may vary the transferable instrument:

[2016] FWC 1929

(a) to remove terms that the FWC is satisfied are not, or will not be,

capable of meaningful operation because of the transfer of business to

the new employer; or

(b) to remove an ambiguity or uncertainty about how a term of the

instrument operates if:

(i) the ambiguity or uncertainty has arisen, or will arise, because

of the transfer of business to the new employer; and

(ii) the FWC is satisfied that the variation will remove the

ambiguity or uncertainty; or

(c) to enable the transferable instrument to operate in a way that is

better aligned to the working arrangements of the new employer’s

enterprise.

Who may apply for a variation

(3) The FWC may make the variation only on application by:

(a) a person who is, or is likely to be, covered by the transferable

instrument; or

(b) if the application is to vary a named employer award—an employee

organisation that is entitled to represent the industrial interests of an

employee who is, or is likely to be, covered by the named employer

award.

Matters that the FWC must take into account

(4) In deciding whether to make the variation, 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 transferable

instrument as varied;

(b) whether any employees would be disadvantaged by the transferable

instrument as varied in relation to their terms and conditions of

employment;

(c) if the transferable instrument is an enterprise agreement—the

nominal expiry date of the agreement;

[2016] FWC 1929

(d) whether the transferable instrument, without the variation, 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, without the

variation;

(f) the degree of business synergy between the transferable instrument,

without the variation, and any workplace instrument that already covers

the new employer;

(g) the public interest.

Restriction on when variation may come into operation

(5) A variation of a transferable instrument under subsection (2) must not come

into operation before the later of the following:

(a) the time when the transferable instrument starts to cover the new

employer;

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

Matters the Fair Work Commission must take into account (s.320(4))

(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 transferable instrument as

varied;

[6]        The new employer is the Applicant for this order and it supports the making of this

order.
[7]	The Applicant lodged a statutory declaration of Mr Robert John Flanagan, Assistant

Secretary of The Australian Workers’ Union (AWU) which indicates that the AWU has

current members who will be transferring employees and those employees favour the

application because it benefits those employees. Mr Flanagan seeks that the Fair Work

Commission grant the application.

(b) whether any employees would be disadvantaged by the transferable instrument as

varied in relation to their terms and conditions of employment;

[8] The Applicant lodged a statutory declaration of Mr Allan Henry King, Senior Site

Officer and General Manager for the Applicant. In his statutory declaration Mr King submits
[2016] FWC 1929

that transferring employees are not disadvantaged by the variation as it will simply adjust the

pay periods but the pay calculations remain the same.

(c) if the transferable instrument is an enterprise agreement—the nominal expiry date of

the agreement;

[9]        The nominal expiry date of the transferable instrument is 1 October 2015.

(d) whether the transferable instrument, without the variation, would have a negative

impact on the productivity of the new employer’s workplace;

[10]      The Applicant submits that the transferring instrument, without the variation, would

have a negative impact on the business of the Applicant.

[11]      The statutory declaration of Mr King indicates that if the application is not granted this

would be problematic for the Applicant as they would effectively have to run two separate

payroll systems, one for transferring employees and one for employees already engaged by

the Applicant. The Applicant submits this would cause significant administrative disruption

and inconvenience.

(e) whether the new employer would incur significant economic disadvantage as a result

of the transferable instrument, without the variation;

[12]      The Applicant is the new employer and submits that they would incur significant

economic disadvantage as a result of the transferring instrument, without the variation.

[13]      The statutory declaration of Mr King indicates that if the order is not granted and the

Applicant is required to run two separate payroll system this would result in the Applicant

incurring unnecessary additional costs.

(f) the degree of business synergy between the transferable instrument, without the

variation, and any workplace instrument that already covers the new employer;

[14]      The Applicant submits that the degree of business synergy between the transferable

instrument, without the variation, and the workplace instrument that already covers the new

employee would be affected as the Applicant would be required to have separate processes

and functions for transferring employees and employees already engaged by the Applicant.

(g) the public interest.

[15]      There is no evidence that the public interest is agitated in this matter.

Conclusion

[16]      Taking into account each of the matters set out in section 320(4) of the Act, I am

satisfied that the order as sought should be granted.

[2016] FWC 1929

[17]      An Order PR578421 will be issued concurrently with this decision.

COMMISSIONER

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