FMG Personnel Services Pty Ltd

[2015] FWC 7764

[2015] FWC 7764

FAIR WORK COMMISSION

DECISION

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

FMG Personnel Services Pty Ltd
(AG2015/5826)

Mining industry
COMMISSIONER WILLIAMS	PERTH, 12 NOVEMBER 2015

Transfer of instrument.

[1] This is an application made pursuant to section 318 of the Fair Work Act 2009 (the Act) by FMG Personnel Services Pty Ltd (the applicant). The application seeks orders that a transferrable instrument, the HWE Mining Pty Limited Surface Mining Agreement 2012 [AE897215] (the HWE Agreement) not cover the applicant nor Fortescue Metals Group Ltd nor any other entity covered by the Fortescue Team Member Agreement 2013 [AE401428] (the FMG Agreement) (collectively Fortescue) in relation to the employment of the employees of Fortescue formerly employed by Thiess Pty Ltd (Thiess) who performed work at the ore processing facilities at the Solomon Hub but that the FMG Agreementcover any employees of Fortescue formerly employed by Thiess under the HWE Agreement. The applicant applies in its capacity as a person who is the likely new employer (section 318(2)(a) of the Act).

[2] Section 318 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.”

Consideration

[3] The application was served on The Australian Workers’ Union (the Union) whom have coverage of the transferring employees. The Commission has sought the Union’s view on the application however the Union has not provide a submission on the matter.

[4] The applicant has provided a statutory declaration addressing the relevant considerations in section 318 of the Act.

[5] The view of the applicant is that the Commission should make the orders sought.

[6] Offers of employment have been made by Fortescue to the 256 transferring employees. Of these 204 employees have provided individual feedback forms which were attached to the application. These show 203 transferring employees want to be covered by the FMG Agreement, are satisfied with the Fortescue offer of employment and support this application being granted by the Commission.

[7] The submissions on behalf of the applicant and the supporting material provided have satisfied me that there is no disadvantage for the transferring employees if these orders are made.

[8] Taking in to account the matters to be considered in section 318(3) of the Act I am satisfied that it is appropriate that this application be granted and orders to that effect will be issued in conjunction with this decision.

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