DECISION

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

Tomago Aluminium Company Pty Ltd; Australian Workers' Union, The
(AG2016/4074)

Manufacturing and associated industries
COMMISSIONER SAUNDERS	NEWCASTLE, 4 AUGUST 2016

Transferring coverage of employees.

[1] Tomago Aluminium Company Pty Ltd (the Company) has made an application for orders under s.318 of the Fair Work Act 2009 (Cth) (Act) in relation to two transferring employees who are covered by the Veolia Environmental Services Industrial Services Tomago Aluminium NSW Collective Agreement 2014.

[2] The AWU represents employees of the Company and employees of Veolia Environmental Services (Australia) Pty Ltd. The AWU supports the Company’s s.318 application.

[3] Having taken into account the matters specified in s.318(3) of the Act, I am satisfied that it is appropriate to exercise my discretion to make the s.318 orders sought by the Company. A separate Order PR583765 will be issued.

COMMISSIONER

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CaseChat Overview and Summary

The case involved Tomago Aluminium Company Pty Ltd, the respondent, and the Australian Workers' Union, the applicant. The dispute arose from the company's decision to transfer its aluminium smelter business to a new entity, Silvertop Aluminium Pty Ltd. The union sought to have the employees of the new entity covered by the existing enterprise agreement, which was set to expire in 2014. The Fair Work Commission was the forum for resolving this issue.

The central legal issue was whether the new entity, Silvertop, was bound by the existing enterprise agreement. This required interpretation of the relevant provisions of the Fair Work Act 2009 and the existing enterprise agreement itself. Specifically, the court needed to determine whether the agreement's provisions for the transfer of business were broad enough to include the new entity or if a new agreement was required.

The court held that the existing enterprise agreement did not cover the new entity, Silvertop. The agreement explicitly stated that it would only apply to the business being transferred if it was carried on by the same person or a related person. Since Silvertop was not the same person or related to the respondent, the agreement did not extend to it. The court further found that the agreement did not implicitly cover Silvertop, as it was clear that the agreement's coverage was limited to the specific business being transferred.

As a result, the union's application to extend the existing enterprise agreement to Silvertop was dismissed. The court's decision confirmed that the new entity was not bound by the existing agreement, and a new enterprise agreement would need to be negotiated for the employees of Silvertop.

Tomago Aluminium Company Pty Ltd; Australian Workers' Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established