Tasmanian Electro Metallurgical Company Pty ltd

[2014] FWC 4093

[2014] FWC 4093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Tasmanian Electro Metallurgical Company Pty ltd
(AG2014/6333)

COMMISSIONER LEWIN SYDNEY, 20 JUNE 2014

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

[1] On 6 June 2014, Tasmanian Electro Metallurgical Company Pty Ltd (TEMCO) made and application pursuant to s. 318(1)(a) of the Fair Work Act 2009 (the Act) that the BIS Industries Bell Bay Enterprise Agreement 2011 (the BIS Agreement) not cover employees listed in Schedule 1 of the application, who become transferring employees following completion by TEMCO of its acquisition of the assets of BIS Industries Ltd (BIS). The employees will then be covered by the TEMCO Enterprise Agreement 2011-2015 (the TEMCO Agreement) pursuant to s. 318(1)(b) of the Act.

Statutory Provisions

[2] S. 318 of the Act prescribes 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] The matter was heard on the papers in Sydney on Friday, 20 June 2014.

[4] The applicant is likely to be the new employer and can make the application in this matter. 1

[5] There are ten employees listed in the application that may be subject to a transfer of employment to TEMCO. On 13 June 2014, my chambers emailed the applicant requesting that the following matters be confirmed in writing:

1. The parties who have been served with the application.

2. When and if the employees on site have been served with the application.

3. That when served with the application, the employees will be, or have been, informed that the matter may be heard on the papers.

4. That employees will be, or have been, informed that should they object to the matter being heard on the papers they should contact the chambers of Commissioner Lewin at [email protected] by close of business Tuesday, 17 June 2014.

5. That employees will be, or have been, informed that should they wish to file submissions in this matter, they should do so by close of business Wednesday, 18 June 2014, to [email protected].

[6] On 13 June 2014, my chambers received an email from the applicant’s representative stating the following;

● Consistent with rule 41 and Schedule 1 of the Fair Work Commission Rules 2013 (Cth), the Application has been served on:

a. the Construction, Forestry, Mining and Energy Union, being the only employee organisation covered by the relevant transferable instrument (that is, the BIS Industries Bell Bay Agreement 2011), and the employee organisation that ordinarily represents the industrial interests of the transferring employees. We note that rule 41 and Schedule 1 do not require that the employee organisations covered by the TEMCO Enterprise Agreement 2011-2015 be served with the Application; and

b. the transferring employees (being the other parties to the transferable instrument).

The relevant service emails are attached for your reference.

● The transferring employees have been informed of the matters set out at points 3 to 5 in your email below. The relevant email informing the transferring employees of these matters is attached for your reference.

[7] No employees who would be affected by the order have provided submissions. I am satisfied that the employees who would be affected by the order have been notified of the opportunity to express their views in relation to the application, pursuant to s. 318(3)(a)(ii).

[8] On 17 June 2014, the Commission’s Enterprise Agreement Unit provided a comparative analysis of the BIS Agreement and the TEMCO Agreement. The analysis confirms that the transferring employees do not appear to suffer a disadvantage by transferring from the BIS Agreement to the TEMCO Agreement. I am therefore satisfied that pursuant to s. 318 (3) (b) transferring employees would not be disadvantaged by the order in relation to their terms and conditions of employment.

[9] Pursuant to s. 318 (3) (c) I have taken the nominal expiry date of the BIS Agreement into account, which is 30 June 2014.

[10] I am satisfied that TEMCO would not incur significant economic disadvantage as a result of the transferable instrument covering the new employer. 2

[11] On my reading of the instruments, I am satisfied that there is a high degree of synergy between the transferable instrument covering the new employer, as prescribed by s. 318 (3) (f).

[12] I am satisfied that there is no public interest beyond the interest of the employees and the employer immediately concerned. 3

Conclusion

[13] I am satisfied that the criteria set out in s. 318(3) of the Act has been satisfied. An Order pursuant to s. 318 (1) of the Act will issue accordingly.

COMMISSIONER

 1 Fair Work Act 2009, s.318 (2) (a).

 2 Ibid. s.318 (3) (e).

 3 Ibid. s. 318(3) (g).

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