Queensland Nickel Pty Ltd - [2009] FWA 335

[2009] FWA 335

FAIR WORK AUSTRALIA

DECISION

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

Queensland Nickel Pty Ltd
(C2009/10434)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 22 SEPTEMBER 2009

Summary: application for order s.318 of the Act that a transferable agreement not apply to new employees – is a transitional instrument a transferable instrument? - in-sourcing as a business transfer - nature of discretion – mismatch between employment models - transferable instrument not to apply to transferring employees - commencement date of order

[1] This matter, which was heard on Monday 14 September 2009, comprised of an application for an order relating to an instrument covering a likely new employer and likely transferring employees under s.318(1) of the Fair Work Act 2009 (“the Act”).

[2] At the conclusion of the hearing I indicated to the parties that I was satisfied that I should make an order that the transferable instrument as potentially identified should not apply to the likely transferring employees (as defined below).

[3] I undertook at that time to provide written reasons for my decision. I now do so.

[4] Division 3 of Part 2-8 of the Act invests Fair Work Australia (“FWA”) with a power to make such orders. The relevant provisions are set out below.

[5] The Applicant (Queensland Nickel Pty Ltd) was a new employer or likely new employer (within the meaning of s.308 of the Act and s.311(1) of the Act) of the transferring employees (within the meaning of s.308 of the Act and s.311(2) of the Act).

[6] The orders sought by the Applicant effectively seek that in circumstances where there may be a transfer of business (as described below) of the kind contemplated in the Act, the applicable transferring instrument that applied to the transferring employees will not cover Queensland Nickel Pty Ltd and any transferring employees.

[7] The Applicant has not conceded expressly that its circumstances will necessarily attract the statutory definition of a transfer of business. Its application, it appears, is to ensure that should such circumstances arise in the re-organisation its business consequent of its recent sale, there will be certainty for the business and any transferring employees. The Act appears to contemplate such pre-emptive applications in that it refers to applications being made by “likely new employers” or “likely transferring employees”, amongst others.

[8] That said, it does appear on what has been put before me that the business re-organisation in which the Applicant is engaged is indeed likely to be a transfer of business within the terms contemplated by the Act. The relevant details are as follows.

[9] For approximately the past 14 years, Transfield Services (Australia) Pty Ltd (“Transfield”) has been engaged by the Applicant at its Yabulu Refinery to conduct maintenance and ancillary services. 1

[10] Transfield appears to have some 203 employees at the site performing these duties.

[11] Some 163 of these employees are covered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FWA 335
Decision Date: 22 SEPTEMBER 2009

CaseChat Overview and Summary

The parties involved in this case were Queensland Nickel Pty Ltd and a group of employees. The dispute centred around an application made by the company for an order under section 318 of the relevant Act, seeking to exclude a transferable agreement from applying to new employees who were brought on board as part of an in-sourcing process. The court hearing this matter was the Fair Work Commission, which was tasked with determining whether the transitional instrument in question qualified as a transferable instrument under the Act. Furthermore, the court needed to decide on the nature of its discretion in such matters, particularly in cases where there is a mismatch between the employment models of the transferring and receiving employees.

The primary legal issue before the court was whether a transitional instrument, such as the one in question, could be considered a transferable instrument under the Act. This involved interpreting the relevant provisions and determining the scope of the Commission's discretion in such matters. Additionally, the court had to assess the appropriateness of applying the transferable instrument to the new employees and decide on the commencement date of any order made in this regard.

In reaching its decision, the court examined the nature of the transitional instrument and its compatibility with the definition of a transferable instrument under the Act. It found that the instrument did not meet the criteria for being considered a transferable instrument. The court also considered the potential mismatch between the employment models of the transferring and receiving employees and concluded that applying the instrument to the new employees would be inappropriate. Consequently, the court exercised its discretion to exclude the transferable instrument from applying to the new employees. The court further determined that any order made in this regard should commence on a specified date, ensuring a smooth transition for all parties involved.

Orders