Peak Gold Mines Pty Ltd
[2022] FWC 1845
•14 JULY 2022
| [2022] FWC 1845 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Peak Gold Mines Pty Ltd
(AG2022/1282)
| Mining industry | |
| COMMISSIONER P RYAN | SYDNEY, 14 JULY 2022 |
Application for an order relating to instruments covering new employer and transferring employees.
Introduction and Background
This decision concerns an application by Peak Gold Mines Pty Ltd (Applicant) for an order pursuant to s.318 of the Fair Work Act 2009 (the Act).
The Applicant is the operator of the Peak Gold Mines. In December 2018, the Applicant outsourced a range of mining services work to Pybar Mining Services Pty Ltd (Pybar) pursuant to a mining services contract.
In undertaking the mining services work, the employees of Pybar are covered by the Pybar Mining Services Pty Ltd Enterprise Agreement 2019 (Agreement).
The Applicant has determined that it will cease to outsource some of the mining services work that is currently performed by Pybar. This will require the Applicant to recruit employees, some of whom are likely to be employees currently employed by Pybar at the Peak Gold Mines. Furthermore, these employees will perform work for the Applicant that is the same, or substantially the same, as the work they currently perform for Pybar.
The Applicant seeks an order in the following terms:
“That in accordance with section 318(1)(a) of the Fair work Act 2009 (Cth), the Pybar Mining Services Pty Ltd Employee Agreement 2019 ([2019] FWCA 4734) will not cover the Applicant or any former employee of Pybar Mining Services Pty Ltd who is employed by the Applicant to work at the Peak Gold Mines.”
In accordance with directions issued by my chambers, interested parties were given the opportunity to file witness statements and submissions in support of, or in opposition to, the application. The Applicant was the only party to file material in response to the directions.
The matter was listed for hearing via Microsoft Teams on 15 June 2022.
I exercised my discretion to grant permission to the Applicant to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2) (a) of the Act. The Applicant was represented by Mr J Wells.
Relevant Legislation
Section 313 of the Act relevantly provides:
313 Transferring employees and new employer covered by transferable instrument
(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:
(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and
…
(3) This section has effect subject to any FWC order under subsection 318(1).
Sections 317 and 318 of the Act relevantly provide:
317 FWC may make orders in relation to a transfer of business
This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
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
In deciding whether to make an order pursuant to s.318 (1) of the Act, the Commission must take into account the matters set out in s.318 (3).
Before turning to those matters, I have had regard to all of the evidence and submissions, and I am satisfied as to the following:
That there is likely to be a transfer of business from Pybar to the Applicant (ss.311 (1) and 317 of the Act);
That the former employees of Pybar who become employed by the Applicant will be transferring employees (s.311 (2) of the Act);
That the Agreement covers Pybar and the persons likely to be transferring employees (s.313(1) of the Act);
That the Agreement is a transferable instrument (s.312 (1) of the Act); and
That the Applicant as the new employer, or a person who is likely to be the new employer, of the transferring employees can make an application for the order sought (s.318(2)(a) of the Act).
I now turn to a consideration of the matters set out in s.318(3) of the Act.
Views of the new employer – s.318 (3)(a)(i)
The Applicant is the new employer, or a person who is likely to be the new employer, who seeks, and is supportive of, the order.
Views of the employees who would be affected by the order – s.318 (3)(a)(ii)
The directions issued by my chambers sought the views of persons likely to be transferring employees, however, none were provided.
Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment – s.318 (3)(b)
The Applicant submitted that there are no employees who would be disadvantaged by the proposed order. In support of this submission, the Applicant relied on the evidence of Mr Craig Thomas, the Applicant’s general manager, who undertook a comparison of the terms and conditions of the Agreement and the Applicant’s employment conditions.[1]
The nominal expiry date of the agreement – s.318 (3)(c)
The nominal expiry date of the Agreement is 7 July 2023.
Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace – s.318 (3)(d)
The Applicant submits it would incur additional human resources and payroll costs in administering different terms and conditions to employees performing the same work. Furthermore, the Applicant submitted that the workforce might become disaffected or disenchanted with the Applicant in circumstances where the different sets of terms and conditions apply to different employees in relation to the same work.
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer – s.318 (3)(e)
The Applicant submits that it would incur significant economic disadvantage through additional human resources and payroll costs, as well as administrative and operational inefficiencies.
The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer – s.318 (3)(f)
The Applicant submitted there would be a negative impact on the Applicant’s business synergy if there is differential treatment of employees in relation to their employment terms and conditions.
The public interest – s.318 (3)(g)
The Applicant did not make a submission in relation to this matter. However, having regard to all of the material before me, I am not of the view that there are public interest reasons weighing against making the orders sought.
Conclusion
Taking into account the matters to be considered in section 318(3) of the Act and all of the materials before me, I am satisfied that it is appropriate that this application be granted and an Order PR743789 to that effect will be issued in conjunction with this decision.
In accordance s.318(4) of the Act, the Order shall take effect from the later of the following:
a.the time when the transferring employees become employed by the Applicant; or
b.the day on which the Order is made.
COMMISSIONER
Appearances:
J. Wells, Solicitor for the Applicant.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
15 June.
Final written submissions:
Applicant: 17 June 2022.
[1] Exhibit A2 at [13]-[15].
Printed by authority of the Commonwealth Government Printer
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