Barminco Limited

[2013] FWC 5831

[2013] FWC 5831

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

Barminco Limited
(AG2013/6651)

Mining industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 19 AUGUST 2013

Application for an order relating to instruments covering a new employer and transferring employees in an agreement.

[1] An application under s.318 of the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (FWC) by Barminco Limited on 27 May 2013.

[2] A hearing took place on 24 June 2013 by video link between Sydney, Hobart and Perth. Barminco Limited (the company) was represented by Ms K Burke, HR General Manager and Mr W Fitzgerald of the Australian Mines and Metals Association (AMMA). The Australian Workers’ Union (AWU) was represented by Mr R Flanagan.

[3] The AWU indicated that they were opposing the application. Directions were issued for written submissions by both parties and the application was set down for a further hearing on 19 August 2013.

[4] The FWC received correspondent from the AWU on 12 August 2013 notifying that Barminco Limited and the AWU had reached an agreement and that they were no longer opposing the application.

[5] I took the view that, given the withdrawal of the objections by the AWU, the matter would be decided on the papers.

[6] The application for orders in relation to the coverage of the agreement was accompanied by a statutory declaration provided by Ms Kerry Burke, HR General Manager Barminco Limited.

[7] At paragraph 2 of Ms Burke’s statutory declaration she states that the company was award the mining contract that was previously held by Macmahon Underground Pty Ltd (Macmahons) at the Bluestone Mines site at Renison in Tasmania. In paragraph 3 she states she was required to recruit 135 mining positions on behalf of the company for the site and that 57 of those employees were previously engaged in the same or similar work by Machanons.

[8] These 57 employees are transferring employees for the purpose of s.311(2) of the Act. Immediately prior to the termination of the transferring employees by the outgoing contactor the employees were covered by the Macmahons Underground Mining Agreement 2009 (AC325861), a transferable instrument under s.312(1) on the Act.

[9] Barminco Limited has in place the Barminco (Tasmania) Enterprise Agreement 2012 (AE400363) made in accordance with the Act and developed specifically by the company for contracts involving the same or similar work in other locations within Tasmania.

[10] The order sought by that company was that the Macmahons Underground Mining Agreement 2009 will not cover Barminco Limited or any of the employees formerly employed by Macmahons.

[11] On the basis of the materials and submissions provided, it is appropriate to make the orders sought by Barminco Limited under s.318 of the Act. In this regard, I have taken into account the matters set out in s.318(3) of the Act, including the agreement reached between the parties. In all the circumstances I am satisfied that the orders sought should be made. The order will come into effect from today.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K Burke of Barminco Limited and Mr W Fitzgerald of Australian Mines and Metals Association

Mr R Flanagan for The Australian Workers’ Union

Hearing details:

2013

Sydney

24 June

Printed by authority of the Commonwealth Government Printer

<Price code A, AC325861  PR540380 >