Construction, Forestry, Mining and Energy Union

[2014] FWC 1848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319—Transferable instrument

Construction, Forestry, Mining and Energy Union
(AG2014/321)

GRIFFIN COAL (PRODUCTION) COLLECTIVE AGREEMENT 2012
(AG2012/9040) [AE895579]

Coal industry

COMMISSIONER WILLIAMS

PERTH, 24 MARCH 2014

Transferable instrument.

[1] This is an application, pursuant to section 319 of the Fair Work Act 2009 (the Act) made by the Construction, Forestry, Mining and Energy Union (the applicant) which seeks orders from the Commission that the Griffin Coal (Production) Collective Agreement 2012 (the Agreement) will cover non-transferring Carna Group Pty Ltd employees who perform, or are likely to perform, transferring work covered by the Agreement as and from 23 March 2014.

[2] Section 319 of the Act sets out the circumstances in which such orders may be made by the Commission, as follows:

“319 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.”

Background

[3] The applicant asserts that there has been a transfer of business from the Griffin Coal Mining Company Pty Ltd (the old employer) to Carna Group Pty Ltd (the new employer). That transfer of business involves the new employer taking over the operation of the open cut coal mines previously operated by the old employer and covered by the Agreement.

[4] The transfer of employees from the old employer to the new employer will occur on or about 23 March 2014.

[5] Carna Group Pty Ltd the new employer has agreed that a transfer of business exists in respect of employees covered by the Agreement and has confirmed this understanding in writing and has undertaken to continue to apply the terms of the Agreement to transferring employees.

[6] The new employer has also committed to recognise the prior service of transferring employees for all purposes including all leave and redundancy.

[7] The new employer also agrees that it would be appropriate for non-transferring employees performing work within the scope of the Agreement to be subject to an order pursuant to section 319 of the Actextending the coverage of the Agreement to those employees.

[8] Correspondence to that effect from Carna Group Pty Ltd was attached to this application.

Consideration

[9] The view of the new employer or a person who is likely to be the new employer, Carna Group Pty Ltd, is that this order should be made by the Commission.

[10] The views of the employees who would be affected by the order are not known as no such employees have been engaged yet.

[11] I am satisfied that the employees affected would not be disadvantaged by the order in relation to their terms and conditions of employment because of the superior terms and conditions contained in the Agreement compared to those contained in any Modern Award that might otherwise apply such as the Black Coal Mining Industry Award 2010 [MA000001].

[12] The nominal expiry date of the Agreement is 31 July 2016 meaning it has quite some time to run.

[13] I accept the submission that the transferable instrument would not have a negative impact on the productivity of the new employer’s workplace and that the new employer would not incur economic disadvantage as a result of the transferable instrument covering the new employer.

[14] There apparently is no workplace instrument that already covers the new employer for this work.

[15] There is nothing to suggest the order sought is contrary to the public interest.

[16] Taking in to account the matters to be considered in section 319(3) of the Act, based on the material provided in the application I am satisfied that it is appropriate that this application be granted and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 18 March 2014

Carna Group Pty Ltd, 21 March 2014

Printed by authority of the Commonwealth Government Printer

The matter involved the Construction, Forestry, Mining and Energy Union, which brought an appeal against the Fair Work Commission in the Federal Court of Australia. The union sought to argue that a transferable instrument that was the subject of an award should be able to be transferred to a union member who was not an employee of the employer to whom the instrument was issued. The instrument in question was a certificate, issued to a former employee, which allowed the holder to claim certain wages and entitlements from their former employer. The union argued that the instrument should be able to be transferred to a new employee who was a member of the union, but who was not an employee of the former employer.

The legal issue before the court was whether the instrument could be transferred in the circumstances described by the union. The court had to determine the proper interpretation of the legislation and the relevant award provisions. The court had to consider whether the instrument could be transferred to a union member who was not an employee of the original employer, and if so, whether this was permissible under the legislation and award. The court also had to consider whether the instrument was a transferable instrument as defined by the legislation.

The court found that the instrument could not be transferred to a union member who was not an employee of the original employer. The court held that the instrument was not a transferable instrument as defined by the legislation, as it was not issued to the new employee and did not relate to the new employee's employment. The court found that the instrument was only transferable to an employee of the original employer, and could not be transferred to a union member who was not an employee of that employer. The court also held that the award provisions did not permit the transfer of the instrument to a union member who was not an employee of the original employer.

The court dismissed the union's appeal and affirmed the decision of the Fair Work Commission. The court held that the instrument could not be transferred to a union member who was not an employee of the original employer, and that the award provisions did not permit such a transfer. The court did not make any orders in relation to the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established