Bis Industries Limited

[2019] FWC 6238

[2019] FWC 6238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Bis Industries Limited
(AG2019/3330)

HARSCO METALS AUSTRALIA WHYALLA SITE ENTERPRISE AGREEMENT 2013
(ODN AG2013/2415)  [AE403889]

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 27 SEPTEMBER 2019

S 318 - Application by Bis Industries Limited for an order relating to instruments covering a new employer and transferring employees.

[1] This matter involves an application by Bis Industries Limited (Bis) under s 318 of the Fair Work Act 2009 (Cth) (Act). Bis has applied for orders from the Fair Work Commission (the Commission) relating to employees who are currently working for Harsco Metals Australia Pty Ltd (Harsco) in Whyalla. These employees are covered by the Harsco Metals Australia Whyalla Site Enterprise Agreement 2013 1(Harsco Agreement).

[2] In April 2019, Bis was awarded a contract to take over logistics, mechanical maintenance and steel making work from Harsco at the Onesteel Whyalla site. Effective 30 September 2019, employees of Harsco (71 employees – the transferring employees) will have their employment with Harsco terminated. On 1 October 2019, the transferring employees will commence employment with Bis and will continue to perform the transferring work on and after 1 October 2019.

[3] Bis already has employees at the Whyalla site who perform logistics and mechanical maintenance work. In respect of this work, Bis’ employees are covered by the Bis Whyalla Workshops Enterprise Agreement 2018 2 (Bis Workshops Agreement), and the Bis Whyalla Drivers and Operators Enterprise Agreement 20183 (Bis D&O Agreement) (collectively the Bis Agreements).

[4] Bis now seeks the following orders under s 318(1) of the Act:

1) The Harsco Agreement will not cover Bis and any employees who transfer to Bis from Harsco.

2) The Bis Workshops Agreement will cover Bis and the transferring employees in the following trade classifications:

a) Level 1;

b) Level 2; and

c) Level 3.

3) The Bis D&O Agreement will cover Bis and the transferring employees in the following production classifications:

a) Level 1;

b) Level 2;

c) Level 3; and

d) Level 4

[5] The application contained detailed grounds and submissions, and was accompanied by a witness statement of Kathryn Winter, Employee Relations Manager of Bis, together with several attachments that in short, contend that which is listed.

a) The transferring employees currently, and will continue to, have the beneficial use of assets previously owned by Harsco in the course of performing the transferring work.

b) The work performed by the transferring employees at Harsco will be the same as that performed at Bis.

c) Bis consulted the transferring employees and representatives of The Australia Workers’ Union (AWU), an employee organisation covered by the Harsco Agreement, about the transfer of employees. The AWU had indicated verbally to a Hadyn Shepherd, General Manager – Mining Services of Bis, South East, it did not oppose the making of the application. 4

d) Ms Winter understood from her discussions with officials of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the AWU that a large number of the transferring employees are members of either union. 5

e) Ms Winter gave evidence that along with Hadyn Shepherd, she held discussions with officials from both the AMWU and the AWU in respect of the application and the effects of the proposed orders. 6 Furthermore, she had been advised by personnel of Bis, who are based at Whyalla, that the AMWU and AWU had entered the site and held discussions with the transferring employees about the transfer.7

f) All 71 transferring employees who were offered employment with Bis have accepted the offer.

g) The AMWU had indicated verbally to Hadyn Shepherd that it did not oppose the application, or the orders sought. 8

h) It is Bis’ view that the orders sought should be made as this will ensure all employees of Bis, current or transferring, performing work at the Whyalla site, will have consistent terms and conditions of employment, therefore simplifying payroll and leave accrual processes, ensuring parity in terms and conditions, and simplify the process of invoicing Bis’ client for the services performed.

i) There is no significant business synergy between the Harsco Agreement and Bis Agreements.

j) The transferring employees will not be disadvantaged if the orders sought are made, as they will have access to more beneficial terms and conditions under the Bis Agreements.

k) Bis is prepared to give a binding undertaking that it will provide more beneficial entitlements which are currently provided to the transferring employees under the Harsco Agreement until 30 September 2020. The binding undertaking signed by an authorised representative of Bis is attached to this decision and titled Attachment One.

[6] Upon receipt of the application my Chambers contacted the AWU seeking confirmation it was in support of the orders sought. The AWU subsequently advised my Chambers it had no issues regarding the application.

[7] In the absence of any objection to the application, and having been advised by the Bis’ representative that it was content for the application to be determined on the papers, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application.

[8] Section 318 of the Act sets out the circumstances in which an order such as that sought by Bis may be made by the Commission:

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.

[9] I have reviewed the application documentation and the accompanying material. These documents outline the factual circumstances which have given rise to the application. Further, the submissions contained in the application address the relevant legislative requirements which are asserted to provide a proper basis for the making of the orders sought.

[10] I am satisfied this circumstance is a transfer of business as understood by reference to s 311 and that the Harsco Agreement is a transferable instrument as described in s 312(1)(a). If the order under s 318(1)(a) was not made, then I consider by virtue of s 313(1)(a) the Harsco Agreement would cover the transferring employees notwithstanding their employment with Bis.

[11] I have considered all the factors set out in s 318(3) and have concluded that it is appropriate and not contrary to the public interest to make orders sought under s 318(1)(a) and (b).

[12] In accordance with section 318(4), the orders 9 shall have effect from the time when the transferring employees become employed by Bis or the date of the orders, whichever is the later.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE403889  PR712110>

Attachment One

 1   [2013] FWCA 6752; AE403889.

 2   [2019] FWCA 2195; AE502668.

 3   [2019] FWCA 6109; AE505100.

 4 Witness Statement of Kathryn Winter [19].

 5 Witness Statement of Kathryn Winter [16].

 6 Witness Statement of Kathryn Winter [17].

 7 Witness Statement of Kathryn Winter [18].

 8 Witness Statement of Kathryn Winter [19].

 9   PR712111.