Newcrest Mining Limited T/A Newcrest Mining
[2023] FWC 25
•4 JANUARY 2023
| [2023] FWC 25 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Newcrest Mining Limited T/A Newcrest Mining
(AG2022/5110)
| Mining industry | |
| DEPUTY PRESIDENT EASTON | SYDNEY, 4 JANUARY 2023 |
Application for an order relating to instruments covering new employer and transferring employees.
Newcrest Mining Limited T/A Newcrest Mining (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Cth) (the Act) for an order for the Cadia Valley Operations Enterprise Agreement 2021[1] will cover Newcrest and any employee whose employment transfers from Byrnecut Australia Pty Ltd (Byrnecut) to Newcrest at Cadia Valley Operations site and any new employees it engages.
In its application, Newcrest Mining has also sought orders that the Byrnecut Australia Enterprise Agreement 2021[2] not cover Newcrest Mining’s employees transferring from employment with Byrnecut to Newcrest at its Cadia Valley Operations site.
The application was accompanied by a signed statement from Ms Narissa Kinghorne who is Newcrest Mining’s Early Careers Lead.
Background
On or around 14 February 2020 Cadia Holdings Pty Ltd, a subsidiary of Newcrest Mining engaged Byrnecut to supply mining technicians to provide a range of specialist services including cable bolting and spraying services at Newcrest Mining’s Cadia Valley Operations site.
The outsourcing agreement expired 30 November 2022 and Newcrest Mining insourced cable bolting and spraying work currently completed by Byrnecut and its employees.
The Byrnecut Australia Enterprise Agreement 2021 covers Byrnecut and its employees around Australia engaged as mine workers in the mining industry (as defined in the Mining Industry Award 2020) to work in the classifications set out at clause 4 of that agreement.
Newcrest Mining has made offers of employment to 24 employees of Byrnecut who perform work at the Cadia Valley Operations and to whom the Byrnecut Australia Enterprise Agreement 2021 applies.
On 1 December 2022 (Transfer Date) a transfer of business occurred pursuant to s.311 of the Act when the Byrnecut employees covered by the Byrnecut Australia Enterprise Agreement 2021 and perform work at Cadia Valley Operations terminated, and when the Byrnecut employees accepted Newcrest Mining’s offers of employment became employed by Newcrest Mining (Transferring Employees). The work the Transferring Employees perform for Newcrest Mining will be the same, or substantially the same, as the work the Transferring Employees performed for Byrnecut (Transferring Work).
Newcrest Mining intends to engage employees who perform the same work as the Transferring Work at Cadia Valley Operations (New Employees) and seeks an order that the Cadia Valley Operations Enterprise Agreement 2021 will apply to Newcrest Mining, any New Employees it engages and other mining employees at Cadia Valley Operations.
Statutory Provisions
Section 318 of the Act sets out the circumstances of when an order may be made by the Commission in respect of a new employer and Transferring Employees:
“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
I am satisfied that the Cadia Valley Operations Enterprise Agreement 2021 is a transferable instrument as defined by s.312(1)(a) of the Act. I am further satisfied that:
(a)the employment of an employee of the old employer has been terminated (per s.311(1)(a));
(b)within 3 months after the termination, the employee becomes employed by the new employer (per s.311(1)(b));
(c)the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer (per s.311(1)(c));
(d)there is a connection between the old employer and the new employer as described in s.311(4), in that the old employer outsources work to new employer (per s.311(1)(d)).
I am satisfied that the Cadia Valley Operations Enterprise Agreement 2021 will cover Newcrest Mining and Transferring Employees, subject to any order the Commission may make.
I am satisfied that Newcrest Mining has standing to make an application and has satisfied s.318(2)(a) of the Act.
Having been satisfied of the necessary jurisdiction requirements in s.311 and s.312 of the Act, I will now consider the criteria set out in s.318(3) that the Commission must take into account.
Newcrest Mining is the new employer and has made the application. (per s.318(3)(a)(i)).
Newcrest Mining informed the Transferring Employees about its intention to insource the Transferring Work and its application to the Commission. Transferring Employees were briefed about the proposed application at interview and a short survey was sent to the Transferring Employees to seek their views. Of the 24 Transferring Employees, 23 responded to the survey and supported Newcrest Mining’s application. The Commission requested that Newcrest Mining confirm service of the application and its attachments to the employees affected and invited them to provide their views directly to the Commission by 12 December 2022. One response was received from Mr Beau McCann advising he supported Newcrest Mining’s application (per s.318(3)(a)(ii)).
No employee organisations were covered by either the Cadia Valley Operations Enterprise Agreement 2021 or the Byrnecut Australia Enterprise Agreement 2021.
Ms Kinghorne in her statement provided an email which was sent to Transferring Employees which contained a copy of the Cadia Valley Operations Enterprise Agreement 2021, Byrnecut Australia Enterprise Agreement 2021, and a summary of terms for each agreement. Ms Kinghorne submits that the Transferring Employees will be better off overall and not be disadvantaged in relation to their terms and conditions (per s.318(3)(b)) citing the following examples where the Cadia Valley Operations Enterprise Agreement 2021 contains more beneficial terms:
minimum hourly rates ranging from $39 to $87 and that no classifications in the Cadia Valley Operations Enterprise Agreement 2021 are lower than the lowest minimum hourly rate in the Byrnecut Agreement 2021;
a sign on bonus of at least $10,000;
where an employee is appointment to undertaking higher duties, the employee will be paid at the rate applicable for the skill set held in the higher role;
after 6 months’ service employees are entitled to 1 months’ notice in writing of termination of employment with an additional week to be provided to those employees with at least 2 years’ continuous service if they are over 45 years of age;
redundancy entitlements of up to a maximum of 52 weeks;
insurance for Total and Partial Disability at Newcrest Mining’s costs for the life of the enterprise agreement;
salary continuance provision where permanent and fixed-term employees are eligible to apply for a salary continuance benefit if injury or illness prevents them from returning to their normal employment duties after an absence of 90 consecutive days;
entitlement to time off in lieu where employees are required to work on public holidays;
parental leave benefits including 18 weeks’ paid leave, superannuation contributions on paid parental leave, accrual of other leave during paid leave period, transition coaching when going on and returning from personal leave, and a payment of 6 weeks’ pay on return from leave;
3 days’ paid bereavement leave;
employees to be paid their normal rates of pay (or for the hours they would have normally been rostered in the case of casual employee) to participate in an emergency services activity or training requirement; and
permanent and fixed-term employees with a contract duration greater than 6 months who are covered by the agreement will be entitled to participate in the Cadia Performance Incentive Plan.
Ms Kinghorne provides three instances where the Transferring Employees would on not be better off overall:
individual flexibility agreements;
additional meal break; and
transportation to the mine site
Ms Kinghorne has provided explanations for the above less beneficial terms and I am satisfied that the Transferring Employees would be better off overall in relation to their terms and conditions of employment (per s.318(3)(b)).
The nominal expiry date of the Cadia Valley Operations Enterprise Agreement 2021 is 25 July 2025 and the nominal expiry date of the Byrnecut Australia Enterprise Agreement 2021 is 16 June 2025 (per s.318(3)(c)).
Ms Kinghorne in her statement provided that if the orders sought by Newcrest Mining were not made, there would be two sets of employment terms and conditions for employees working side-by-side in the same roles at the Cadia Valley Operations site which would result in:
industrial disharmony, lower employee engagement and potentially more difficulty with recruitment;
practical complexity for Newcrest Mining which will need to apply different rostering rules and entitlements;
system complexity as Newcrest Mining will need to configure its payroll, time and attendance and employment contract systems and processes to provide for different entitlements to team members in the same roles; and
added complexity for Newcrest Mining’s support functions, for example, the payroll talent acquisition and human resources teams.
I am satisfied that not making the order sought would create operational inefficiencies and give rise to negative productivity impacts flowing from the requirement to administer the terms and conditions of the two agreements (per s.318(3)(d)) and that Newcrest Mining would suffer significant economic disadvantage as a result of the order not being made (per s.318(3)(e)).
The agreements contain a number of different terms and conditions of employment. If the order is granted it will confirm a single framework of regulation that has been negotiated and approved in the same general context in which it has applied and will continue to apply. Granting the order will result in a great degree of business synergy for both Newcrest Mining, the Transferring Employees and New Employees (per s.318(3)(f)).
Based on the material contained in the F40 application and Ms Kinghorne’s statement, I am satisfied that it would not be contrary to the public interest to make the Orders sought and that the granting of the orders would provide more certainty and consistency in relation to employment terms and conditions.
Conclusion
Having considered each of the matters in s.318(3) of the Act I am satisfied that it is appropriate for the Order to be made.[3]
In accordance with s.318(4) of the Act, the Order will not come into operation in relation to the Transferring Employees before the later of the following:
a)the time when the Transferring Employees becomes employed by Newcrest Mining; or
b)the day on which the order is made.
DEPUTY PRESIDENT
[1] AE512430.
[2] AE511883.
[3] PR749405.
Printed by authority of the Commonwealth Government Printer
<AE512430 PR749404>
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