Bluestone Mines Tasmania Joint Venture Pty Ltd

[2016] FWC 2583

[2016] FWC 2583

FAIR WORK COMMISSION

DECISION

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

Bluestone Mines Tasmania Joint Venture Pty Ltd
(AG2016/2814)

Tasmania
COMMISSIONER LEE	HOBART, 28 APRIL 2016

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

[1] An application has been made by Bluestone Mines Tasmania Joint Venture Pty Ltd (the Applicant) to the Fair Work Commission (the Commission) for an order pursuant to section 318 of the Fair Work Act 2009 (the Act).

[2] The application consists of a Form F40 - Application for orders in relation to transfer of business, a Statutory Declaration of Mr Allan Henry King, Senior Site Officer and General Manager for the Applicant and a Statutory Declaration of Mr Matt Brown, Mr Ricky Williams, Mr Gary Hales and Mr Darren Phillips (the transferring employees).

[3] The application seeks an order that the Hahn Electrical Group Enterprise Agreement 2014 - 2018 1 will not cover the Applicant or the transferring employees and that the transferring employees will be covered by The Bluestone Mines Tasmania JV Enterprise Agreement 2015.2

Legislation

“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.”

Background

[4] The Applicant is insourcing its mining function. The transferring employees employed by Hahn Electrical have accepted employment with the Applicant. The Applicant and the transferring employees will be subject to the transferring instrument the Hahn Electrical Group Enterprise Agreement 2014 – 2018 pursuant to s.313(1) of the Fair Work Act 2009 (the Act).

[5] The Applicant submits that it, and the transferring employees, do not wish the instrument to transfer and that the transferring employees be covered by The Bluestone Mines Tasmania JV Enterprise Agreement 2015. The Statutory Declarations provided by Mr King and the transferring employees support this view.

Transferrable instrument

[6] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, it is likely that there will be a transfer of business within the meaning of section 311(1) of the Act.

[7] Section 312 of the Act details instruments that may transfer:

“312 Instruments that may transfer

Meaning of transferable instrument

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(b) a workplace determination;

(c) a named employer award.

Meaning of named employer award

(2) Each of the following is a named employer award:

(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.”

[8] The Bluestone Mines Tasmania JV Enterprise Agreement 2015 was approved by the Fair Work Commission on 4 May 2015 and pursuant to section 312(1) of the Act is a transferrable instrument.

Who may apply for an order

[9] The application has been made by the new employer (the Applicant). The requirements of section 318(2) have been met.

Matters the Fair Work Commission must take into account (s.318(3))

Section 318(3)(a) - the views of the new employer and the employees who would be affected by the order

[10] The new employer is the Applicant for this order and it supports the making of the order.

[11] The transferring employees who will be affected by the order if granted, Mr Matt Brown, Mr Ricky Williams, Mr Gary Hales and Mr Darren Phillips, provided Statutory Declarations supporting the application made.

Section 318(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[12] The Applicant submits that the transferring employees will not, on an overall basis, be disadvantaged in relation to their terms and conditions of employment if the Commission makes the proposed order.

[13] The Statutory Declarations provided by the transferring employees provide that Hahn Electrical will on termination, pay their redundancy and annual leave entitlements, that both the Applicant and Hahn Electrical will comply with the Long Service Leave Act 1976 and the Applicant will recognise as continuous service their prior service with Hahn Electrical and as such they are not disadvantaged overall.

[14] The Statutory Declarations further provide that the terms of The Bluestone Mines Tasmania JV Enterprise Agreement 2015 are superior to the terms set out in the Hahn Electrical Group Enterprise Agreement 2014 – 2018.

[15] Having considered all of the material before me, I am satisfied that the transferring employees will not be disadvantaged by an order in relation to their terms and conditions of employment.

Section 318(3)(c) - if the order relates to an enterprise agreement—the nominal expiry date of the agreement

[16] The nominal expiry date for The Bluestone Mines Tasmania JV Enterprise Agreement 2015 is 1 December 2016. The nominal expiry date for the Hahn Electrical Group Enterprise Agreement 2014 – 2018 is 13 July 2018. This is a neutral consideration.

Section 318(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

[17] The Applicant submits that the transferring employees will be integrated into the existing site electrical team and as such will be required to perform surface and underground duties as opposed to mainly underground duties.

[18] The Applicant further submits that it is expedient, fair and equitable that all electrical employees on site have parity of wages and conditions, that this has been accepted by the transferring employees and if this did not occur then it would have a negative impact on the Applicant’s workplace.

Section 318 (e) - whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

[19] No submissions were made regarding the new employer incurring significant economic disadvantage.

Section 318 (f) - the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

[20] The Applicant submits that the Hahn Electrical Group Enterprise Agreement 2014 – 2018 is not compatible with the business synergy of the Applicant as the insourcing of the mining function is now required to be an integrated mining and processing operation.

Section 318 (g) the public interest

[21] The Applicant submitted that it is in the public interest to make the order.

Conclusion

[22] Having considered the matters above, it is apparent that most matters weigh towards the grating of the application sought, while some are a neutral consideration. Taking into account each of the matters set out in section 318(3) of the Act, I am satisfied that the order as sought should be granted.

[23] An Order [PR579413] will be issued concurrently with this decision.

COMMISSIONER

 1   AE409067

 2   AE413780

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579411 >