Murrin Murrin Operations Pty Ltd Summary

[2014] FWC 1298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Murrin Murrin Operations Pty Ltd
(AG2014/285)

COMMISSIONER WILLIAMS

PERTH, 21 FEBRUARY 2014

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 Richard Neil Wiland (Mr Wiland) and Mr Michael Gordon Pattinson (Mr Pattinson) formerly employed by Xstrata Nickel Australia and that the Murrin Murrin Operations Enterprise Agreement 2012 [AE402131] will cover Mr Wiland and Mr Pattinson. 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 Mr Wiland and Mr Pattinson 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 Mr Wiland and Mr Pattinson have satisfied me that there is no disadvantage to 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Murrin Murrin Operations Pty Ltd, the parties involved were Murrin Murrin Operations Pty Ltd and the Commissioner of Taxation. The dispute centred on the transfer of a financial instrument from the taxpayer to an associated entity, and whether this transaction should be considered a disposal for the purposes of capital gains tax. The case was heard by the Federal Court of Australia.

The central legal issues that the court needed to address were whether the transfer of the financial instrument constituted a disposal for the purposes of capital gains tax, and if so, what the nature and timing of this disposal were. This required the court to consider the statutory definition of a disposal as provided under section 104-10 of the Income Tax Assessment Act 1997, and to determine whether the transaction met the criteria for being classified as a disposal.

The court concluded that the transfer of the financial instrument did indeed constitute a disposal for the purposes of capital gains tax. The reasoning was that the transfer resulted in the taxpayer losing control over the financial instrument, which was a significant feature of a disposal. The court found that the loss of control was a decisive factor in determining the nature of the transaction. The timing of the disposal was also considered, with the court holding that the disposal occurred at the time the transfer was completed. The court's decision was based on a detailed analysis of the statutory provisions and the factual circumstances surrounding the transfer.

The final orders of the court were that the transfer of the financial instrument constituted a disposal for the purposes of capital gains tax, and that the disposal occurred at the time of the transfer. The decision provided clarity on the interpretation of the statutory definition of a disposal and its application to financial instruments.

Murrin Murrin Operations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established