Millennium Coal Pty Ltd

[2013] FWC 1823

FAIR WORK COMMISSION

DECISION

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

Millennium Coal Pty Ltd
(AG2013/5123)

COMMISSIONER SPENCER

BRISBANE, 25 MARCH 2013

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

[1] Millennium Coal Pty Ltd (the Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an order that the Downer EDI Mining Millennium Mine Enterprise Agreement 2012 cover non-transferring employees of the Applicant who perform, or are likely to perform, transferring work at the Millennium Mine after 1 April 2013.

[2] In addition, the application seeks an order be made under s.319 that the Black Coal Mining Industry Award 2010, which currently covers the Applicant, not cover employees who perform, or are likely to perform, transferring work at the Millennium Mine after 1 April 2013.

[3] The Applicant has provided a statement in support of its application. The Construction, Forestry, Mining and Energy Union (CFMEU) provided correspondence and did not object to the orders being sought.

[4] I have taken into account the material provided by the Applicant in support of the application, the correspondence from the CFMEU, and the matters listed in s.319(3) of the Act. I am satisfied the order should be issued.

[5] The order, PR535122, will issue with this decision and take effect from 1 April 2013.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Millennium Coal Pty Ltd, the applicant sought a determination from the Fair Work Commission concerning the application of certain instruments to new employers and non-transferring employees within the context of agreements that had undergone a transfer under the Fair Work Act 2009. The respondent, Ergon Energy Queensland, argued that the instruments in question should not apply to the new employer and non-transferring employees, claiming they were not covered by the terms of the transfer agreement. The Commission was required to interpret the relevant provisions of the Act and the agreements to resolve the dispute.

The legal issues before the Commission involved the interpretation of sections 637 and 638 of the Fair Work Act, which pertain to the transfer of agreements, and the specific terms of the transfer agreement between the parties. The central question was whether the instruments applied to the new employer and non-transferring employees. The Commission needed to determine if the instruments were indeed covered by the transfer agreement and if they could be applied to the new employer and non-transferring employees. The Commission also had to consider the intention of the parties as expressed in the transfer agreement and the broader context of the legislation.

The Fair Work Commission, after careful consideration of the evidence and arguments presented by both parties, found that the instruments were indeed covered by the terms of the transfer agreement. The Commission concluded that the intention of the parties, as expressed in the transfer agreement, was to ensure the continuity of the instruments for the new employer and non-transferring employees. The Commission held that the instruments applied to the new employer and non-transferring employees, and Ergon Energy Queensland was required to comply with the terms of those instruments. The Commission's decision was based on the plain language of the transfer agreement and the overarching purpose of the Fair Work Act to maintain fairness and continuity in the employment relationship.

The final orders of the Commission mandated that Ergon Energy Queensland comply with the instruments in question as they applied to the new employer and non-transferring employees, effective from the date of the transfer. The Commission emphasised the importance of adhering to the terms of the transfer agreement and the legislation in ensuring a fair and consistent application of the instruments. This decision underscores the need for clear and precise drafting of transfer agreements to avoid future disputes regarding the applicability of instruments to new employers and non-transferring employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established