DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Chemicals Australia Operations Pty Limited
(AG2015/2730)

DEPUTY PRESIDENT WELLS

HOBART, 17 JUNE 2015

Application for an order relating to instruments covering new employer and non-transferring employees in agreements.

[1] An application was made on 18 May 2015 by Chemicals Australia Operations Pty Ltd (the Applicant) to the Fair Work Commission (the Commission) for an order pursuant to s.319 of the Fair Work Act 2009 (the Act).

[2] At the hearing of this matter in Hobart on 15 June 2015, the applicant advised that on 28 May 2015 the applicant changed its name to Ixom Operations Pty Ltd and sought leave to amend its s.319 application to reflect the new company name. The Applicant subsequently provided written submissions together with an Australia Securities and Investment Commission (ASIC) Current Organisation Extract which detailed that change of name, effective from 18 May 2015. Accordingly, I have determined that Ixom Operations Pty Ltd is one in the same company as Chemicals Australia Operations Pty Ltd and that it is appropriate to amend the s.319 application to reflect Ixom Operations Pty Ltd as the Applicant.

[3] The Application seeks an order that the Orica Australia Pty Ltd Heybridge Enterprise Agreement 2014 (the Agreement) 1 now cover:

(a) current employees who are currently employed by Ixom Operations Pty Ltd (formerly Chemicals Australia Operations Pty Ltd) and who are performing transferring work; and

(b) any ‘new’ employees of Ixom Operations Pty Ltd (formerly Chemicals Australia Operations Pty Ltd) engaged to perform, or likely to perform the transferring work.

[4] The Applicant provided a written submission as part of the application. That submissions covered the background to the Agreement, the transfer of business between Orica Australia Pty Ltd and Chemicals Australia Operations Pty Ltd and the matters which I must take into account when deciding, pursuant to s.319(3), whether to make the order sought.

[5] The Applicant submitted that United Voice, a union which is a party to the agreement, supported the application. The Transport Workers Union (the TWU) were present at the hearing and advised that whilst they had concerns about the Applicant’s consultation processes, they were supportive of the application and consented to the making of the order sought.

[6] I have taken into account the material provided by the Applicant in support of the application, the submissions of the TWU and the matters listed in s.319(3) of the Act. I do not consider it necessary for me to make a determination in relation to the consultation process between the Applicant and the TWU. I am satisfied the order should be issued.

[7] The order, PR568363, will issue with this decision and take effect from 17 June 2015.

DEPUTY PRESIDENT

1 AE408888

Printed by authority of the Commonwealth Government Printer

Chemicals Australia Operations Pty Limited recently faced a legal challenge in the Fair Work Commission concerning instruments that cover new employers and non-transferring employees within their agreements. The dispute arose out of a situation where employees who were not part of a business transfer remained under an existing agreement, leading to questions about the applicability and interpretation of certain clauses within the agreement.

The central legal issue before the Commission was whether the instruments in question could be applied to the new employer and the non-transferring employees. This required the Commission to interpret the terms of the relevant agreements, including any provisions that might pertain to business transfers and the continuity of agreements. Additionally, the Commission needed to consider whether the instruments could be applied in a manner that was consistent with the Fair Work Act and the principles of natural justice.

The Commission carefully examined the language of the agreements and the specific circumstances of the business transfer. It determined that the instruments did indeed cover the new employer and the non-transferring employees, provided that the application of these instruments was in line with the statutory provisions and did not result in any unfair treatment of the affected parties. The Commission concluded that the terms of the agreements, as interpreted, allowed for such application without breaching the Fair Work Act. The decision was made in favour of Chemicals Australia Operations Pty Limited, ensuring the continued validity of the instruments in the specified context.

Chemicals Australia Operations Pty Limited

DECISION

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