Murrin Murrin Operations Pty Ltd

[2013] FWC 8543

[2013] FWC 8543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Murrin Murrin Operations Pty Ltd
(AG2013/9906)

COMMISSIONER WILLIAMS PERTH, 30 OCTOBER 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 Xstrata Nickel Australasia Operations Pty Ltd Cosmos Enterprise Agreement 2011 [AE885368] not apply to the applicant in relation to the employment of Mr Mark Andrew Lesley Flood (Mr Flood) formerly employed by Xstrata Nickel Australia and that the Murrin Murrin Operations Enterprise Agreement 2012 [AE402131] will cover Mr Flood. 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 declaration of Mr Flood says that he is 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 declaration of Mr Flood have satisfied me that there is no disadvantage to Mr Flood if these orders are made indeed he will then be employed with improved benefits.

[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.

COMMISSIONER

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