Pybar Mining Services Pty Ltd

[2016] FWC 6553

[2016] FWC 6553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Pybar Mining Services Pty Ltd
(AG2016/5129)

COMMISSIONER CIRKOVIC MELBOURNE, 12 SEPTEMBER 2016

Application for an order relating to instruments covering new employer and transferring employees.

[1] An application has been made by Pybar Mining Services Pty Ltd (Applicant) to the Fair Work Commission (Commission) for an order pursuant to section 318 of the Fair Work Act 2009 (Act).

[2] The application was supported by a statutory declaration of Ms Elsie Joubert, Human Resources Manager for the Applicant and a statutory declaration of Mr Daniel Cunningham and Mr Marcus Rigby (the transferring employees).

[3] The application seeks an order that the Henty Gold Limited Enterprise Agreement 2010 1will not cover the Applicant or transferring employees and that the transferring employees will be covered by the Pybar Mining Services Pty Ltd Employee Agreement 20142.

Legislative scheme

[4] Section 318 of the Act sets out the circumstances in which an order may be made by the Commission:

“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.”

Background

[5] Diversified Minerals, an associate of the PYBAR Group, purchased the Unity Mining Company and have commenced plans to restart the Henty Gold Mine. The Applicant will provide mining services to Diversified Minerals and will recruit all the roles currently listed in the classifications of the transferring instrument. The Applicant and the transferring employees will be subject to the transferring instrument the Henty Gold Limited Enterprise Agreement 2010 pursuant to s.313(1) of the Act.

[6] The Applicant submits that it, and the transferring employees, do not wish the instrument to transfer and that the transferring employees be covered by the Pybar Mining Services Pty Ltd Employee Agreement 2014. The statutory declarations provided by Ms Joubert and the transferring employees support this view.

Transferrable instrument

[7] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, it is likely that there will be a transfer of business within the meaning of section 311(1) of the Act.

[8] Section 312 of the Act details instruments that may transfer:

“312 Instruments that may transfer

Meaning of transferable instrument

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(b) a workplace determination;

(c) a named employer award.

Meaning of named employer award

(2) Each of the following is a named employer award:

(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise.”

[9] The Henty Gold Limited Enterprise Agreement 2010 was approved by the Commission on 17 September 2010 and pursuant to section 312(1) of the Act is a transferrable instrument.

Who may apply for an order

[10] The application has been made by the new employer. The requirements of section 318(2) have been met.

Matters the Commission must take into account (s.318(3))

s.318(3)(a) – the views of the new employer and the employees who would be affected by the order

[11] The new employer is the Applicant for this order and it supports the making of the order.

[12] The transferring employees who will be affected by the order if granted, Mr Cunningham and Mr Rigby, provided statutory declarations supporting the application made.

s.318(3)(b) – whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

[13] The Applicant submits that the transferring employees will not, on an overall basis, be disadvantaged in relation to their terms and conditions of employment if the Commission makes the proposed order.

[14] The statutory declarations provided by the transferring employees provide that the terms and conditions of the Pybar Mining Services Pty Ltd Employee Agreement 2014 reflect the national mining rates and conditions and as such they would not, on an overall basis, be disadvantaged.

[15] Having considered all the material before me, I am satisfied that the transferring employees will not be disadvantaged by an order in relation to their terms and conditions of employment.

s.318(3)(c) – if the order relates to an enterprise agreement – the nominal expiry date of the agreement

[16] The nominal expiry date for the Henty Gold Limited Enterprise Agreement 2010 was 18 September 2014. The nominal expiry date for the Pybar Mining Services Pty Ltd Employee Agreement 2014 is 19 November 2018.

s.318(3)(d) – whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace

s.318(3)(e) – whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

[17] The Applicant submits that the transferable instrument would have a negative impact of the Applicant’s workplace in relation to productivity and that it would incur significant economic disadvantage as a result of the transferable instrument covering it.

s.318(3)(f) – the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer

[18] The Applicant submits that the transferable instrument is not compatible with the business synergy of the Applicant as a national mining contractor.

s.218(3)(g) – the public interest

[19] The Applicant submits that it is in the public interest to make the order.

Conclusion

[20] Having considered the application and the materials filed in support of the application, I am satisfied that all the requirements of s.318 of the Act have been met. An order will be issued with this decision.

COMMISSIONER

 1   AE880868

 2   AE411001

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<Price code C, PR585336>