Norton Gold Fields Limited

[2013] FWC 7287

[2013] FWC 7287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Norton Gold Fields Limited
(AG2013/9320)

Mining industry
COMMISSIONER WILLIAMS	PERTH, 23 SEPTEMBER 2013

Transfer of instrument.

[1] This is an application, pursuant to s 318 of the Fair Work Act 2009 (the Act) filed by Norton Gold Fields Limited (Norton or the applicant) which seeks orders from the Commission that a transferrable instrument, being the Kalgoorlie Mining Company (Bullant) Pty ltd Greenfields Agreement No-1 ( 2011) [AE885620] (the KMC Agreement) not apply to the applicant in relation to the employment of Mr Robert John Frahm (Mr Frahm) who was previously employed by Kalgoorlie Mining Company Pty Ltd (KMC) and that the Norton Gold Fields Ltd Paddington Operations Enterprise Agreement 2013 [AE403652] (the Norton Agreement) will cover Mr Frahm. 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] In early August 2013 Norton acquired KMC and its Bullant Mining Operations near Kalgoorlie in Western Australia.

[4] At the time of the acquisition the Bullant Mining Operations were under care and maintenance and Mr Frahm was the only employee at the mine.

[5] Mr Frahm’s employment with KMC ended on 2 August 2013 and he was employed by Norton on Monday, 5 August 2013 as a service person.

[6] The view of the new employer Norton is that the Commission should make the orders sought and the affidavit of Mr Frahm says that he is also supportive of the Commission making these orders.

[7] The submissions on behalf of Norton and the material provided by them and the affidavit of Mr Frahm have satisfied me that there is no disadvantage to Mr Frahm if these orders are made indeed he will then be employed under improved employment standards and benefits.

[8] The nominal expiry date of the KMC Agreement is 30 September 2014 whereas the nominal expiry date of the Norton Agreement is 3 September 2017.

[9] In terms of the matters to be considered in sections 318(3)(d), (e) and (f) of the Act I accept the submissions on behalf of Norton that there will be some negative impact on productivity if the applicant is required to maintain two different sets of employment conditions and that there will be some economic disadvantage if that was the case and that there is little business synergy between the KMC Agreement and the Norton Agreement which already covers the applicant.

[10] At a time when the gold mining industry is under significant economic pressure there is some, albeit limited, public interest in the applicant’s business being able to continue operations without inefficiencies being created by the transferable agreement covering the applicant and transferring employees unnecessarily.

[11] Taking all of the above matters into account 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

Appearances:

P Robertson of the Australian Mines and Metals Association for the applicant.

Hearing details:

2013.

Perth:

September 20.

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