National Union of Workers

[2013] FWC 2052

[2013] FWC 2052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.320 - Application to vary a transferable instrument - agreement

National Union of Workers
(AG2013/5336)

ONESTEEL DISTRIBUTION AGREEMENT 2011-2014

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 8 APRIL 2013

S.320 - Application to vary a transferable instrument - transfer of business - new employer - transferring employees - default superannuation fund.

[1] The National Union of Workers (NUW) has made an application pursuant to s.320 of the Fair Work Act 2009(the Act) to vary the OneSteel Distribution Agreement 2011-2014 (the Agreement).

[2] MRC Global Pty Ltd (MRC) has purchased the piping systems business of OneSteel Trading Pty Ltd (OneSteel). The purpose of this application is to take into account the transfer of the OneSteel piping business and to provide appropriate superannuation arrangements for the employees affected by the transfer of business.

[3] The NUW has made the application pursuant to s.320(3)(b) as an employee organisation that is entitled to represent the industrial interests of employees covered by the Agreement. The grounds relied upon by the NUW in its application to vary the Agreement include the following:

• The Agreement covers MRC as the new employer. Clause 34 of the Agreement sets out the obligations of MRC as they relate to superannuation. In particular it provides that an employee who does not nominate a particular superannuation fund for the purpose of employer contributions shall have their contributions directed to the default fund known as OneSteel Super.



• OneSteel Super is a fund managed on behalf of OneSteel. For an employee to be a member of the fund he or she must be an employee of OneSteel.



• As part of the purchase of the piping systems business, OneSteel, the trustees of OneSteel Super and MRC entered into an agreement that had the practical effect of allowing transferring employees to remain members of OneSteel Super until 31 December 2013, by which time MRC was to have in place alternative superannuation arrangements so as to replicate its obligations as the new employer including the identification of an alternative default superannuation fund.



• MRC has concluded the process of determining its preferred superannuation arrangement and the variation sought by this application reflects those arrangements.



• The application is in the public interest and is not prejudicial to any party.



• The application is supported by MRC and the transferring employees of the OneSteel piping systems business.

[4] A conference of the parties was convened on 15 March 2013 to consider the proposed variation. The conference was attended by Paul Richardson, Assistant National Secretary of the NUW and by Tracy Samassa, Human Resources Manager of OneSteel Metalcentre. MRC did not attend the conference but sought to rely on a letter dated 12 March 2012 from Lisa Mulligan, Director Human Resources Asia Pacific, confirming MRC’s endorsement of the proposed variation.

[5] Following the conference, the parties have agreed to a revised variation of the Agreement in respect of the operation of the clauses relating to MRC’s default superannuation fund and the transferring employees.

[6] I am satisfied that the relevant requirements of s.320 of the Act have been met in relation to the revised variation. The variation will ensure that the instrument has meaningful operation in relation to the transferring employees and the continuing business of MRC as the new employer. The variation will not disadvantage the transferring employees, the employees of MRC, or the employees of the other OneSteel businesses covered by the Agreement.

[7] I have taken into account the other matters referred to in s.320(4) as relevant to the present application and have had regard to the grounds relied upon by the NUW and the material in support of its application including the respective positions of MRC and OneSteel that each endorse the application. Accordingly, I am satisfied that it is appropriate to vary the Agreement to reflect the transfer of the piping systems business of OneSteel and MRC’s default superannuation arrangements. An order to this effect [PR535449] will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

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