Application by Odyssey Marine Pty Ltd
[2024] FWC 1130
•21 MAY 2024
| [2024] FWC 1130 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Application by Odyssey Marine Pty Ltd
(AG2024/1139)
| DEPUTY PRESIDENT BINET | PERTH, 21 MAY 2024 |
Order relating to instruments covering new employer and transferring employee.
Odyssey Marine Pty Ltd (Odyssey Marine) has made an Application (Application) for orders pursuant to section 318 of the Fair Work Act 2009 (Cth) (FW Act).
Odyssey Marine is part of the Odyssey Marine Group (Odyssey Group). The Odyssey Group provide inshore maritime services in the Port of Port Hedland. The Odyssey Group performs these services using labour sourced inter alia from Odyssey Marine and Strategic Workforce Solutions (SWS).
Odyssey Marine employs employees in the classifications of Master and Deckhand. Odyssey Marine and employees of Odyssey Marine are covered by the Odyssey Marine Pty Ltd Enterprise Agreement 2020 (Odyssey Agreement).
The nominal expiry date of the Odyssey Agreement is 28 May 2024. Negotiations for a replacement agreement are due to commence shortly.
SWS employs employees in the classifications of Master, Engineer, Mate, Rating and General Purpose Hand in the Port of Port Hedland. SWS and employees of SWS are covered by the Strategic Workforce Solutions Pty Ltd Enterprise Agreement 2020 (SWS Agreement).
The nominal expiry date of the SWS Agreement is 9 February 2025.
On 14 March 2024, Odyssey Marine wrote to the following of SWS covered by the SWS Agreement employees (Transferring Employees) offering them employment:
Ryan Rushton
Tim Holder
Cameron Barton
Stuart Garrett
Jonathan (Jake) Guastavino
Christopher Williams
Brendon Shinnick
Glenn Burns
Sam Oliver
Tyson Jones
Thomas Whitby
Beau Guyler
Anna Osinski
Jackson Herron
Cameron Beaton
Odyssey Marine say that Odyssey Marine and SWS are related entities, that the work the Transferring Employees will perform for Odyssey Marine is the same or substantially the same as the work the Transferring Employees performed for SWS and that therefore without the orders sought in this Application the SWS Agreement will apply to Odyssey Marine and the Transferring Employees.
Odyssey have therefore applied for the following Orders:
a.pursuant to section 318(1)(a) of the FW Act, that the SWS Agreement does not cover Odyssey Marine or the Transferring Employees; and
b.pursuant to section 318(1)(b) of the FW Act that the Odyssey Agreement will cover Odyssey Marine and the Transferring Employees.
On 17 April 2024 directions were issued to Odyssey Marine (Directions) which at paragraph [8] required Odyssey Marine to provide a copy of the Application (and materials filed in support of the Application) and a copy of the Directions to all Transferring Employees and any employee organisation which ordinarily represents the industrial interests of the Transferring Employees by 4pm Monday 22 April 2024.
The Directions invited any Transferring Employee or employee organisation which ordinarily represents the industrial interests of the Transferring Employees wishing to be heard with respect to the Application to contact my Chambers by 4pm Friday 26 April 2024.
On 22 April 2024 Ms Yvonne Wortelboer, HR and Personnel Logistics Coordinator of Odyssey Marine filed a statutory declaration confirming Odyssey Marine had complied with paragraph [8] of the Directions.
Relevant statutory provision
Section 311(1) of the FW Act provides that:
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a)the employment of an employee of the old employer has been terminated;
(b)within 3 months after the termination, the employee becomes employed by the new employer;
(c)the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of the subsections (3) to (6).”
Section 318 of the FW Act provides that:
“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.”
Odyssey Marine has standing pursuant to s.318(2) of the FW Act to make the Application in its capacity as the new employer of the Transferring Employees.
Odyssey Marine, the new employer of the Transferring Employees, as Applicant in these proceedings is supportive of the Orders being made. While it admits it will not suffer any significant economic disadvantage if the Orders are not made Odyssey Marine point to the business synergy in the two cohorts of employees performing the same work being subject to the same terms and conditions of employment.
Odyssey Marine submit that the minimum entitlements of the Transferring Employees for the work they perform would be more generous under the Odyssey Agreement than the SWS Agreement and that this differential is likely to increase when a replacement agreement for the Odyssey Agreement is negotiated.
Odyssey Marine point out that as the Odyssey Agreement is due to expire nearly a year earlier than the SWS Agreement the Transferring Employees will have an earlier opportunity to renegotiate better terms if the Orders are made.
The Transferring Employees' offer of employment advised the employees of Odyssey Marine’s intention to make this Application. All Transferring Employees accepted the offers of employment. None of the Transferring Employees nor any organisation which ordinarily represents the industrial interests of the Transferring Employees has contacted Chambers seeking to be heard within the period proscribed in the Directions. This suggests that the Transferring Employees are not opposed to the Orders being made.
There is nothing before me to suggest that the Orders would be contrary to the public interest.
In light of the above, I am satisfied that it is appropriate to make the orders sought by Odyssey Marine. Orders to this effect will be issued with this decision.[1]
DEPUTY PRESIDENT
[1] PR774387.
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