Glendell Mining Pty Ltd T/A Glendell Mining Pty Ltd - [2022] FWC 2423

[2022] FWC 2423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Glendell Mining Pty Ltd T/A Glendell Mining Pty Ltd

(AG2022/3314)

Black Coal Mining industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 12 SEPTEMBER 2022

Application for orders under s 318 of the Fair Work Act 2009 (Cth)

Introduction and background

Glendell Mining Pty Ltd (Glendell) operates the Glendell open cut coal mine (Glendell Mine). Glendell is part of the Glencore Group.

Adjacent to the Glendell Mine is the Mt Owen open cut coal mine (Mt Owen Mine). It is currently operated by Thiess Pty Ltd (Thiess) pursuant to a contract with Mt Owen Pty Ltd (Operating Services Agreement). Mt Owen Pty Ltd is also part of the Glencore Group.

Both the Glendell Mine and the Mt Owen Mine are owned by Glencore.

The operation of the Mt Owen Mine has been outsourced to Thiess since 2002.

In November 2021, Glencore announced that it had decided not to renew or extend the Operating Services Agreement when it expires on 31 December 2022, and that it would convert the Mt Owen Mine to an owner operator model.

Glencore currently owns 22 pieces of equipment which are operated by Thiess employees and located at the Mt Owen Mine. From 1 January 2023, this equipment will remain the property of Glencore and continue to be used at the Mt Owen Mine, but it will be used by Glendell employees. Glencore has also purchased 60 pieces of equipment it will operate at the Mt Owen Mine, but the equipment will not arrive by 1 January 2023 due to ongoing supply chain and shipping issues in connection with COVID-19. As a result, Glencore has entered into an arrangement in the form of a contract for hire with Thiess for 15 pieces of equipment.

The permanent workforce at the Glendell Mine is currently 249 employees. Of these, 199 employees are employed by Glendell in the position of “mine operations employee”, which is the title given to operation employees performing production and maintenance duties at the Glendell Mine. These employees are covered by the Glendell Mine Operations Employee enterprise Agreement 2021 (Glendell EA). The coverage of the Glendell EA also extends to employees of Glendell who are engaged at the Mt Owen Mine.

The permanent production and engineering workforce at the Mt Owen Mine is currently 389. These employees are covered by the Thiess Mt Owen Mine Enterprise Agreement 2022 (Thiess EA).

As part of its decision to operate the Mt Owen Mine, Glencore has decided that Glendell will directly employ the majority of the production and engineering workforce. Glencore has decided that the Mt Owen Mine workforce will comprise approximately 486 production and engineering employees, consisting of:

(a)approximately 187 Glendell employees who are currently working at the Glendell Mine will be used to work at the Mt Owen Mine under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2423
Decision Date: 12 SEPTEMBER 2022

CaseChat Overview and Summary

Glendell Mining Pty Ltd (Glendell) applied to the Fair Work Commission (FWC) for orders under section 318 of the Fair Work Act 2009 (Cth), relating to the transfer of employees and the application of enterprise agreements in the context of a business restructure. Glendell, which operates the Glendell coal mine, is part of the Glencore Group. It sought orders to exclude the existing Thiess Mt Owen Mine Enterprise Agreement 2022 (Thiess EA) from covering Glendell and its employees transferring from Thiess, and to include the Glendell Mine Operations Employee Enterprise Agreement 2021 (Glendell EA) in covering those employees.

The court was required to determine whether it should exercise its discretion under section 318(1) of the Act to make the orders sought by Glendell. This required consideration of the statutory criteria set out in section 318(3) of the Act, including the views of the parties, whether employees would be disadvantaged, the expiry dates of the relevant agreements, the impact on productivity and economic disadvantage, business synergy, and the public interest.

The court found that the views of Glendell and the employees, who were represented by the CFMMEU, supported the orders. It also found that the Glendell EA provided superior terms and conditions of employment for the transferring employees, and that applying the Thiess EA would negatively impact productivity and have limited business synergy. While the Glendell EA would provide longer certainty, the overall factors weighed in favour of making the orders. The court found the orders would be in the public interest by balancing employee protections and Glendell's interests in running its enterprise efficiently.

In conclusion, the court exercised its discretion under section 318(1) of the Act to make the orders sought by Glendell, excluding the Thiess EA and including the Glendell EA in covering the transferring employees.

Orders