Murrin Murrin Operations Pty Ltd

[2013] FWC 10130

[2013] FWC 10130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Murrin Murrin Operations Pty Ltd
(AG2013/9907)

COMMISSIONER WILLIAMS PERTH, 23 DECEMBER 2013

Transfer of instrument.

[1] This is an application, pursuant to section 318 of the Fair Work Act 2009 (the Act) filed by Murrin Murrin Operations Pty Ltd (Murrin Murrin or the applicant) which seeks orders from the Commission that a transferrable instrument, being the Sir Samuel Mines NL Sinclair Employee Collective Agreement 2007 (the Sinclair Agreement)[AC311761] not apply to the applicant in relation to the employment of five employees formerly employed by Xstrata Nickel Australasia Operations Pty Ltd and that the Murrin Murrin Operations Enterprise Agreement 2012 (the Murrin Murrin Agreement) [AE402131] will cover these employees. The applicant applies in its capacity as a person who is the 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 view of the new employer Murrin Murrin is that the Commission should make the orders sought and the statutory declarations of Neven Juraga, Roy Mareta and Wayne Lewis say that they are also supportive of the Commission making these orders.

[4] The submissions on behalf of Murrin Murrin and the material provided by them and the statutory declarations of these three employees have satisfied me that there is no disadvantage for them if these orders are made.

[5] Taking in to account the matters to be considered in section 318(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 orders to that effect will be issued in conjunction with this decision for Neven Juraga, Roy Mareta and Wayne Lewis.

[6] With respect to Leah O’Reilly and Majid Sarvi the situation is different. The statutory declarations of these two employees provided to the Commission are in similar terms but are quite different from the statutory declarations made by the other three employees I have considered above. This was queried with the applicant’s representative whom advised that the applicant still sought that the Order covers these two employees.

[7] Leah O’Reilly and Majid Sarvi state in their statutory declarations that they have been provided with a copy of the Murrin Murrin Operations Common Law Contract and a copy of the Sinclair Agreement and that they want the Murrin Murrin Operations Common Law Contract to regulate the terms and conditions of their employment because the conditions are better. Their statutory declarations also say they are aware that an application will be made to the Commission to set aside the Sinclair Agreement so that the Murrin Murrin Operations Common Law Contract will cover their employment.

[8] The statutory declarations of these two employees do not mention the Murrin Murrin Agreement at all.

[9] The applicant’s representative’s have provided a copy of the Murrin Murrin Operations Common Law Contract and letters of an offer of employment and an offer of a transfer of employment respectively given to these two employees by the applicant.

[10] Neither the Murrin Murrin Operations Common Law Contract nor the respective letters of offer make any mention of the Murrin Murrin Agreement.

[11] The position offered to Leah O’Reilly is as an Emergency Services Officer and the transfer offered to Majid Sarvi is as a Process Engineer-Production. Having considered the classifications of the Murrin Murrin Agreement it is not self-evident that these positions are covered by the classifications prescribed in this agreement.

[12] Given this information I am not satisfied that these two employees have agreed to the order sought in this application which would have the effect that their employment is covered by the Murrin Murrin Agreement. Further even if the employees did agree to such orders being made it would be misleading to make that order if in fact the enterprise agreement which is said to cover them may not have a classification that aligns with their position.

[13] Consequently no orders will be issued regarding Leah O’Reilly and Majid Sarvi at this time.

COMMISSIONER

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