BHP Olympic Dam Corporation Pty Ltd
[2025] FWC 2760
•25 September 2025
| [2025] FWC 2760 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
BHP Olympic Dam Corporation Pty Ltd
(AG2025/2928)
| MINING INDUSTRY | |
| COMMISSIONER PLATT | ADELAIDE, 25 SEPTEMBER 2025 |
Application for orders relating to transferable instrument - WorkPac Pty Ltd Non Coal Mining Agreement 2016 will not apply to transferring employees - Clerks – Private Sector Award 2020 will apply to the transferring employees
On 27 August 2025, BHP Olympic Dam Corporation Pty Ltd (the Applicant) filed an application pursuant to s. 318 of the Fair Work Act 2009 (the Act) seeking orders relating to instruments covering new employer and transferring employees.
The Applicant is an entity of BHP Group which employs persons to perform work at the Olympic Dam Mine. Workpac Ptd Ltd (Workpac) is engaged by the Applicant under a services agreement to provide labour hire to the Olympic Dam Mine for the Applicant.
The Applicant made an offer of employment to three employees of Workpac, Abbie Daymond, Tamara Hollitt & Lesley Smith (transferring employees), who perform work as mine sign operators and have their employment governed by the WorkPac Pty Ltd Non Coal Mining Agreement 2016
These offers of employment have been accepted by the transferring employees and they are scheduled to commence on 9 October 2025. In the circumstances, the Applicant is (or is likely to become) the new employers.
In the absence of the Orders sought, the transferring employees would be covered the WorkPac Pty Ltd Non Coal Mining Agreement 2016, a transferable instrument which would apply in circumstances where there has or is likely to be transfer of business.
The Applicant seeks the following Orders:
· That the WorkPac Pty Ltd Non Coal Mining Agreement 2016 will not apply to Applicant or the Transferring Employees.
· The Clerks – Private Sector Award 2020 will apply to the transferring employees.
LEGISALTION
Section 318 of the Act sets out the circumstances in which an order can be made by the Commission:
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.
CONSIDERATION
On 1 September 2025, I directed the Applicant to provide a copy of the application, industrial instruments and comparison documents to the affected employees and invited parties to express a view. There were no objections received.
For the reasons set out below, I am satisfied that it is appropriate to make the orders pursuant to s.318(1).
Views of the new employer
The Applicant is seeking that the Clerks – Private Sector Award 2020 apply to the transferring employees instead of the WorkPac Pty Ltd Non Coal Mining Agreement 2016 and submits that the scope of that Award encompasses the transferring employees. This weighs in favour of making the orders sought
Views of the employees
The transferring employees did not express a view in relation to the application. I consider this a neutral consideration.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
The Applicant has provided details of the terms and conditions of employment and a financial comparator. Taking into consideration the terms and conditions and the proposed remuneration, the transferring employees will be better off overall.
Accordingly, I do not consider that the transferring employees would be disadvantaged by the orders sought in relation to their terms and conditions of employment and find that this weighs in favour of making the orders sought.
Nominal expiry date of the agreement
The WorkPac Pty Ltd Non Coal Mining Agreement 2016 has passed its nominal expiry date of 1 February 2021. I consider this a neutral consideration.
Whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace
Once transferred, the transferring employees will, at times, work side by side with the existing employees. As a result, if the pay and conditions were not the same, it may have a negative impact on the productivity of the Applicant where there is disputation among the workforce. .
I accept that the continued application of the WorkPac Pty Ltd Non Coal Mining Agreement 2016 could have a negative impact on the productivity of Applicant. I consider this weighs in favour of making the orders sought.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
Based on the material before me and due to the size of the Applicants enterprise, I do not consider that BHP Olympic Dam Corporation Pty Ltd would incur significant economic disadvantage as a result of the WorkPac Pty Ltd Non Coal Mining Agreement 2016 covering it. This is a neutral consideration.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer
I note that as a result of the Administrative nature of the role and by virtue of Clause 1.2.2 of the Olympic Dam Enterprise Agreement 2023 (ODEA), the ODEA would not apply to the transferring employees. I consider this to be a neutral consideration.
The public interest
I am not of the view that it is contrary to the public interest to make the proposed orders having regard to the material before me.
Consideration
In weighing the considerations set out in s.318 (3) of the Act, I am satisfied that it is appropriate that the Application be granted.
In accordance with s.318(4) of the Act, the order shall take effect from the later of the following:
· the time when the transferring employee becomes employed by the new employer
· the day on which the order is made.
COMMISSIONER
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