Beach Energy Ltd T/A Beach Energy
[2022] FWC 1899
•20 JULY 2022
| [2022] FWC 1899 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
Beach Energy Ltd T/A Beach Energy
(AG2022/2076)
AMWU, ETU, AWU, Beach Energy BassGas Operations and Maintenance Enterprise Agreement 2021
| Oil and gas industry | |
| COMMISSIONER YILMAZ | MELBOURNE, 20 JULY 2022 |
Application for an order relating to instruments covering non- transferring employees.
This decision concerns an application by Beach Energy Ltd T/A Beach Energy (the Applicant) for orders pursuant to s.319(1)(b) of the Fair Work Act 2009 (the Act) that the Beach Energy BassGas Operations and Maintenance Enterprise Agreement 2021[1] (the Agreement) will cover non-transferring employees who perform transferring work for the Applicant.
By way of background, Beach Energy Services Pty Ltd, a wholly owned subsidiary of Beach Energy Ltd has obtained employment for employees of Beach Energy Ltd on the same terms and conditions of the Agreement that covers the sites in this application and in the area of work performed under the Agreement. The Applicant is seeking orders that the transferable instrument, the Beach Energy BassGas Operations and Maintenance Enterprise Agreement 2021 apply to new non-transferring employees at the Applicant’s BassGas gas processing plant in Lang Lang Victoria and its Yolla platform site.
The orders sought by the Applicant are as follows:
1. Pursuant to s 319(1)(b) of the Fair Work Act 2009 (Cth), the AMWU, ETU, AWU, Beach Energy BassGas Operations and Maintenance Enterprise Agreement 2021 [AE515092] (the Agreement) will cover non-transferring employees of Beach Energy Ltd who perform transferring work at Beach Energy Ltd’s operations at:
· the BassGass processing plant at Lang Lang, Victoria; or
· the Yolla platform offshore facility associated with the BassGass processing plant;
in a classification contained in the Agreement in respect of their employment with Beach Energy Ltd.
2. In accordance with s.318(4) this Order takes effect when a non-transferring employee starts to perform the transferring work subject to Order 1 for Beach Energy Ltd.
The orders will not apply to any other non-transferring employee employed by Beach Energy Ltd at any other location, and the transferring work will be limited to the work covered by the transferrable instrument at the relevant locations.
The application was lodged on behalf of the Applicant by the Australian Resources & Energy Employer Association (AREEA). No submissions in opposition were received from the Electrical Trades Union of Australia, the Australian Workers Union or the Australian Manufacturing Workers’ Union and I am satisfied that the matter can be determined on the papers without the need for a hearing.
New non-transferring employees of new employer to be covered by transferable instrument
I am satisfied that the Agreement is a transferable instrument within the meaning of s.312 of the Act, and I observe that Beach Energy Ltd accepts that the Agreement is a transferable instrument. Section 314 of the Act sets out when new non-transferring employees may be covered by a transferring instrument. The clause provides:
“New non-transferring employees of new employer may be covered by transferable instrument
(1) If:
(a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and
(b) after the transferable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and
(c) the non-transferring employee performs the transferring work; and
(d) at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non-transferring employee in relation to that work;
then the transferable instrument covers the new employer and the non-transferring employee in relation to that work.
(2) A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.
(3) This section has effect subject to any FWC order under subsection 319(1).
The Agreement, the transferable instrument, in accordance with s.313(1)(a) is an instrument that covers the new employer and the transferring employee in relation to the transferring work after the transfer time that the employee becomes employed by the new employer.
Consideration of section 319
Section 319 of the Act sets out the matters the Commission must have regard to in determining if the orders sought should be granted
Section 319 provides as follows:
“Orders relating to instruments covering new employer and non-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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee;
(b)an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(c)an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.
Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.
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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(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 non-transferring employee before the later of the following:
(a)the time when the non-transferring employee starts to perform the transferring work for the new employer;
(b)the day on which the order is made.”
The application in relation to the matters to be taken into account
Section 319(3)(a)(i) – Views of the new employer
The Applicant is the new employer, who seeks, and is supportive of, the order.
Section 319(3)(a)(ii) – views of the employees who would be affected by the order
It is not possible to obtain the views of the employees who will be affected by the order because there are no non-transferring employees currently employed by the Applicant.
Section 319(3)(b) – whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
The Applicant submits that the transferable instrument provides superior entitlements to the terms and conditions of the alternative instrument, being the Hydrocarbons Industry (Upstream) Award 2020.
I am inclined to agree with the Applicant’s submissions and consider that employees would not be disadvantaged in relation to their terms and conditions in favour of making the order sought.
Section 319(3)(c) – the nominal expiry date of the agreement
I note that the Agreement has a nominal expiry date of 30 June 2024 and consider that the granting of the proposed orders would not disadvantage employees.
Section 319(3)(d) – whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
The Applicant submits that the transferable instrument currently covers operations at the BassGas facility and there would be no negative impact on productivity for non-transferring employees to be covered by the same instrument.
I am satisfied that there will be no negative impact on productivity upon making the order sought.
Section 319(3)(e) – whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
The Applicant submitted that the new employer has made the Application and is supportive of the order and considered that there will be no significant economic disadvantage in making the order.
I consider that if the order sought were made, the Agreement’s coverage of non-transferring employees will not cause any significant economic disadvantage.
Section 319(3)(f) – the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer
The Applicant submits that the transferable instrument currently covers operations at the BassGas facility and that “business synergy” is the same.
Given that the Applicant and Beach Energy Services Pty operate in the oil and gas industry. I am satisfied that the requirement of s.319(3)(f) is met based on a consideration of the materials before me.
Section 319(3)(g) – the public interest
The Applicant submits that industrial harmony would be served by non-transferring employees working under the same terms and conditions of employment as transferring employees. Having regard to all the material before me, I am not of the view there are public interest reasons that weigh against making the Order sought.
Conclusion
Having taken into the account the material provided by the Applicant in support of its
application and the matters set out in s.314 and 319(3) of the Act, I am satisfied that that it is appropriate to grant the order pursuant to s.319(1)(b), that a transferable instrument that covers, or is likely to cover the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.
An order[2] to this effect will be issued together with this decision.
COMMISSIONER
<PR743958>
[1] [AE515092].
[2] PR743959.
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