CSRP Pty Ltd
[2018] FWC 3347
•11 JUNE 2018
| [2018] FWC 3347 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.318 and s.319 – Transfer of instrument
CSRP Pty Ltd
(AG2018/2068)
COMMISSIONER WILLIAMS | PERTH, 11 JUNE 2018 |
Transfer of instrument.
[1] CSRP Pty Ltd (the Applicant or CSRP) is a wholly owned subsidiary of Fortescue Metals Group Pty Ltd (Fortescue). Thiess Pty Ltd (Thiess) has maintained the Water Services and Non-processing Infrastructure works at the Solomon mine site since 2012 which is owned and operated by Fortescue.
[2] By mutual agreement Thiess and Fortescue have reviewed and developed a business model for the provision of Water Services and Non-processing Infrastructure works at the Solomon mine site and from 1 July 2018 Fortescue will take over and resume full operation and control of the Water Services division from Thiess.
[3] CSRP has made conditional offers of employment to the 15 employees employed by Thiess in the Water Services division (the Transferring Employees) with the intention that from or shortly following 1 July 2018 CSRP will be the employer of the Transferring Employees.
[4] Prior to this the Transferring Employees will be covered by the HWE Mining Pty Limited Surface Mining Agreement 2012 [AE897215] (the HWE Agreement). CSRP intends the Transferring Employees to perform roles that fall within the scope of the CSRP Enterprise Agreement 2016 [AE424473] (the CSRP Agreement), to which it is a party.
[5] This application is made pursuant to sections 318 and 319 of the Fair Work Act 2009 (the Act). The application seeks orders that the CSRP Agreement will cover the transferring employees who will perform, or are likely to perform the transferring work for the Applicant and that the HWE Agreement will not cover:
(a) the Applicant or Fortescue or any related entity of CSRP or Fortescue;
(b) transferring employees who will perform, or are likely to perform the transferring work for the Applicant;
(c) new non-transferring employees who will perform or are likely to perform the transferring work for the Applicant.
Legislation
[6] Sections 318 and 319 of the Act sets out the circumstances in which such orders may be made by the Commission, as follows:
“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.
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.”
Consideration
[7] The Applicant has provided a statutory declaration of Ms Melaine Atkinson, Manager Fortescue People - Solomon addressing some of the relevant considerations in sections 318 and 319 of the Act.
[8] On 25 May 2018 the Commission wrote to the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) seeking confirmation whether any of the Transferring Employees were members of the respective union and if so whether either union wished to be heard in relation to the application. The AMWU has not sought to make a submission and the CEPU have advised it does not object to the application.
[9] Taking in to account the matters to be considered in sections 318(3) and 319(3) of the Act and the evidence provided by the Applicant I am satisfied that it is appropriate that this application be granted and an Order [PR607925] to that effect will be issued in conjunction with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR607924>
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