Panoramic Resources Limited T/A Panoramic Gold Pty Ltd
[2011] FWA 1845
•30 MARCH 2011
[2011] FWA 1845 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements
Panoramic Resources Limited T/A Panoramic Gold Pty Ltd
(AG2011/5620)
Mining industry | |
COMMISSIONER WILLIAMS | PERTH, 30 MARCH 2011 |
Application for an order relating to instruments covering new employer and transferring employees in agreements.
[1] This matter involves an application made by Panoramic Resources Ltd and Panoramic Gold Proprietary Ltd (the Applicants).
[2] The application was lodged on the Form F40 Application For Orders in Relation to Transfer of Business. The application explains that the name of the transferable instrument to which this application relates is the Apex Gold Proprietary Ltd Employee Collective Workplace Agreement 2008 (the Apex Agreement). It appears that the application is made under section 318 of the Fair Work Act 2009 (the Act).
[3] The application as lodged is unclear as to in what capacity the Applicants are applying for an order. Section 3 of the application provides five options for an Applicant to select from and the Applicants when completing the form had ticked all of these, which obviously is not correct. Two of the options refer to Applicants who are employees and one refers to an Applicant which is an employee organisation. Self-evidently the Applicants are neither employees nor employee organisations. From what was said at the hearing of this matter I am assuming that the Applicants made this application believing that one of them is a “new employer or the likely new employer”.
[4] The application says the orders sought are that:
- the Apex Agreement will not cover the Applicants and any employees of the Applicants formerly employed by Apex Gold Proprietary Ltd and that
- the Applicants common-law employment contracts will cover any employees of the Applicant's, formerly employed by Apex Gold Proprietary Ltd.
[5] The grounds of the Applications are that the “Terms and conditions of employment are more favourably offered by..” the Applicants and “Transferring and future employees would be at an economic disadvantage should they not be employed under the Applicants terms and conditions of employment.”
The legislation
[6] The relevant provisions of the act are set out below.
Part 2-8—Transfer of business
Division 1—Introduction
s.307 Guide to this Part
This Part provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one national system employer to another national system employer.
Division 2 describes when a transfer of business occurs and defines the following key concepts: old employer, new employer, transferring work, transferring employee and transferable instrument.
Division 2 also sets out the circumstances in which enterprise agreements, certain modern awards and certain other instruments that covered the old employer and the transferring employees (including high income employees) cover the new employer, the transferring employees and certain non-transferring employees and organisations.
Division 3 provides for FWA to make orders in relation to a transfer of business.
s. 308 Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer.
s. 309 Object of this Part
The object of this Part is to provide a balance between:
(a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and
(b) the interests of employers in running their enterprises efficiently;
if there is a transfer of business from one employer to another employer.
Division 3—Powers of FWA
s. 317 FWA may make orders in relation to a transfer of business
This Division provides for FWA to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
s. 318 Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA 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) FWA 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 FWA must take into account
(3) In deciding whether to make the order, FWA 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.
[7] In consideration of those matters that s 318 (3) prescribes Fair Work Australia must take into account when considering whether or not to make an order under section 318 the notice of listing which was both e-mailed and faxed to the Applicants Human Resource Manager Ms Ram, who had signed the application on behalf of the Applicants, included the following heading,
***NOTE: DIRECTIONS ATTACHED***
The directions attached were as follows,
Fair Work Australia directs that:
1. The representatives of the Applicant are to provide a written outline of submissions and a copy of any witness statements, documents or authorities that will be relied upon to Fair Work Australia by 4:00pm Tuesday 15 March 2011 and at this time will serve a copy of the outline of submissions and this notice of listing on each employee whom would be affected by the Order applied for.
[8] The body of the notice of listing included a note in bold that any person wishing to be heard on this matter shall attend at the above date and time and file an outline of submissions with Fair Work Australia.
[9] At the hearing of this matter Ms Ram confirmed she had received the notice of listing. Notwithstanding this the Applicants did not comply with the directions above. No outline of submissions nor any other materials were filed with Fair Work Australia and more importantly neither were any of these copied to the employees whom would be affected by the order sought by the Applicants nor as required by those directions were those employees who would be affected by the order applied for served with a copy of this notice of listing.
[10] At the hearing of this matter the only person in attendance was Ms Ram on behalf of the Applicants.
Consideration
[11] Whilst only the barest of information has been provided to the tribunal regarding the background to this application for the purposes of this matter I accept that there has in this case been a transfer of business and that one of the Applicants are the new employer, as defined in the Act, and that the Apex Agreement is a transferable instrument.
[12] If that is correct then one of the Applicants, although it is not clear which one, does have standing under section 318 (2) to make an application to Fair Work Australia for an order.
[13] Section 318 (3) prescribes, when deciding whether to make the order sought or not, what matters Fair Work Australia must take into account. I will consider each of these in turn.
The views of the new employer or a person who is likely to be the new employer
[14] As I have found above one of the Applicants I accept is the new employer and their view is that the tribunal should make the orders they have applied for.
The views of the employees who would be affected by the order.
[15] The submissions made on behalf of the Applicants are that there are only two employees who would be affected by the orders sought. It is submitted that both employees support the application. The only confirmation of this is a document which purports to have been signed by Matt Peebles and is dated 19 March 2011.
[16] The document reads as follows
“Two hume it may concern,
I Matthew Peebles who is a new employee of Panoramic gold and formerly an employee of Apex minerals understand that the common law employment contract offered by Panoramic resorces is more faverable to me and am happy for this change to take place. (sic)”
[17] The Applicant provided some material to the tribunal after the hearing including a document entitled “Common Law Employment Contract 2011” and another entitled “Special Conditions of Employment Schedule.” The documents are pro formas only and do not refer to any individual employee. The documents have not been signed by anybody. Further the parts of the documents that would state what the annual salary is and what the work cycle roster is have not been completed.
[18] Mr Peebles did not attend the hearing. It is not clear from the document he appears to have signed what the provisions of the common law contract offered to him was. Nor is it clear what he means by “.. being happy for this change to take place.” There is no evidence before me as to in what context Mr Peebles made the statement he signed.
[19] Consequently I am not satisfied that the statement signed by Mr Peebles should be taken as evidence that he supports the tribunal making the specific orders sought by the Applicants.
[20] There is no evidence before me as to what the view of the remaining employee is other than the bland statement from the bar table that he also supports the application.
[21] The failure of the Applicant to comply with the directions that have been issued means that the employees that will be affected by the orders sought are probably not aware of the submissions and materials relied upon by the Applicants at the hearing and they probably are not aware that there was to be a hearing of this matter and that any person wishing to be heard could attend those proceedings on the listed date.
[22] The Applicant has not provided sufficient information to the tribunal that allows a finding to be made as to what the views are of the employees who would be affected by the order.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment.
[23] The Applicant submits that the employees who would be affected by the order would not be disadvantaged by the order and in fact their terms and conditions of employment, which it is submitted are set out in a common law contract with one of the Applicants, are superior to those set out in the Apex Agreement.
[24] Accepting the submissions of the Applicant that parts of the common law contract that would apply to the employees whom would be affected by the order, such as the remuneration, redundancy pay and long service leave, are superior to the provisions of the Apex Agreement is not the complete answer to the question of whether or not the employees would be disadvantaged by the order sought in relation to their terms and conditions of employment.
[25] While the pro forma common law contracts include some superior conditions by comparison with the Apex Agreement I note that Clause 8 Variation of Contract in the pro forma Common Law Employment Contract 2011 includes a provision that the employer and the employee can agree in writing to vary the employee's contract at any stage. This approach is obviously not unusual for contracts of employment but is not something that the employee and employer could agree to do with respect to the terms of the Apex Agreement whilst it still applies to them. Some would argue then that the superior conditions in the common law contracts are always open to renegotiation and change in the future, albeit only by agreement with the employee, but that this is a less secure arrangement than an employee having their employment terms and conditions provided by a registered agreement.
[26] There are also terms of the Common Law Employment Contract 2011 pro forma which may involve some disadvantage to the employees by comparison with the terms of the Apex Agreement. Examples of such provisions are Clause 9 Confidential Information, Clause 31 Medical Examinations, Clause 34 Drugs and Alcohol, Clause 35 Smoke-free Workplace, Clause 36 Intellectual Property, Clause 37 Continuity of Labour Supply, Clause 45 Work Outside of Employment, Clause 47 Share Trading and Clause 51 Code of Conduct. Each of these clauses involves a constraint, limitation or a new obligation being imposed on an employee that is not in the Apex Agreement.
[27] In conclusion there are a mixture of advantages and disadvantages to the employees in this case.
If the order relates to an enterprise agreement—the nominal expiry date of the agreement.
[28] The Applicant in their submission has not advised the tribunal what the nominal expiry date of the Apex Agreement is.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace.
[29] The Applicant in their submissions has not advised the tribunal what impacts the Apex Agreement would have on the productivity of the new employer's workplace.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer.
[30] The Applicant in their submission has not advised the tribunal whether there is any economic disadvantage as result of the Apex Agreement covering the new employer.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer.
[31] The Applicant in their submission has not addressed this issue.
The public interest.
[32] The Applicant in their submission has not advised the tribunal on this issue.
Conclusion
[33] Section 318 of the Act provides that the tribunal has discretion to make orders of the kind sought by the Applicants in this matter. Section 318 (3) prescribes particular matters that the tribunal must take into account when deciding whether or not to make the orders that the Applicants have sought.
[34] The onus is on the Applicants to put evidence and submissions on each of the matters that the tribunal is obliged to consider that will support a conclusion that the orders they seek should be made. The Applicant in this case has fallen well short in this regard.
[35] Considering all that has been put before the tribunal by the Applicant in this matter which addresses those matters that I am obliged to consider the Applicants have not made out a case of any weight that supports the making of the orders sought. I decline to make the orders sought by the Applicant. This application is now dismissed.
COMMISSIONER
Appearances:
Ms T Ram, Human Resources Manager, on behalf of Panoramic Resources Limited and Panoramic Gold Pty Ltd.
Hearing details:
2011.
Perth:
March 25.
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<Price code C, AC318486 PR507863>
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