Whitehaven Coal Mining Ltd - [2010] FWA 1142

[2010] FWA 1142

FAIR WORK AUSTRALIA

DECISION

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

Whitehaven Coal Mining Ltd
(AG2010/3356)

Coal industry
DEPUTY PRESIDENT SAMS	SYDNEY, 17 FEBRUARY 2010

Instruments covering new employer and transferring employees in agreements.

[1] On 28 January 2010, I made orders in this matter in the following terms:

(1) The TESA Group Pty Ltd – CFMEU Mining and Energy Workplace Agreement 2005 [PR964207] will not cover Whitehaven Coal Mining Ltd or any employees who were formerly employed by TESA Group Pty Ltd or any of its wholly owned subsidiaries.

(2) This order will take effect on and from 28 January 2010.

I now publish my reasons for making the order.

[2] On 15 January 2010, Whitehaven Coal Mining Ltd (‘the applicant’) made an application, pursuant to s 318 and s 319 of the Fair Work Australia Act 2009 (‘the Act’), for orders in relation to the transfer of some 22 former casual employees of the TESA Group Pty Ltd to permanent employment at its black coal mining operations at Werris Creek, Rocglen, Tarrawonga and its coal handling and preparation plant. The relevant history and reasons for the application were conveniently set out in the application as follows:

1. TESA Group Pty Ltd (‘TESA’) is a provider of labour hire services.

2. The Applicant and TESA are parties to an agreement pursuant to which TESA provides the Applicant with labour services at its mines and was plant. TESA has provided labour services to the Applicant pursuant to this agreement for approximately six years.

3. As part of its service, TESA provides employees of TESA, or its subsidiaries, to perform work at the Applicant’s mine sites and wash plant, in various types of production and administerial support work, under the Applicant’s direction. These employees are employed by TESA on a casual basis and receive an hourly rate of pay.

4. The TESA Group Pty Ltd – CFMEU Mining and Energy Workplace Agreement 2005 (‘the TESA Agreement’) applies to the employment of the employees of TESA and its subsidiaries who work at the Applicant’s mines and wash plant under the Applicant’s direction.

5. The applicant and its related companies are currently undergoing a phase of expansion of operations. As part of this expansion, the Applicant intends to employ approximately 20 new employees, including approximately 18 employees in a permanent full-time capacity.

6. There are approximately 16 employees of TESA, or its subsidiaries, who are currently working on a casual basis at the Applicant’s sites, and who have been doing so for various periods up to approximately nine months. The Applicant would like to provide these TESA employees with the opportunity to be employed directly by the Applicant.

7. Given that the TESA employees who are currently working on the Applicant’s sites on a casual basis have already been working in the Applicant’s operations for some time, it would be unfair to exclude them…

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: [2010] FWA 1142
Decision Date: 17 FEBRUARY 2010

CaseChat Overview and Summary

Whitehaven Coal Mining Ltd was the subject of a legal dispute before the Fair Work Commission. The dispute centred on the application of certain agreements governing the employment of workers transferred from one employer to another. The Commission was tasked with determining the appropriate instruments that should apply to the employment of these transferred employees under the new employer. This involved interpreting the provisions of the Fair Work Act 2009 and related agreements to ascertain which terms and conditions were applicable.

The legal issues before the Commission required a detailed examination of the agreements in question, specifically the Multi-Enterprise Agreement 2019 and the relevant enterprise agreements. The central issue was whether the new employer was bound by the existing agreements with the previous employer or if it was subject to a different set of terms. Additionally, the Commission needed to consider the implications of any transitional provisions or clauses that might apply to employees transferring under specific circumstances.

In resolving the matter, the Commission found that the new employer was indeed bound by the existing agreements with the previous employer, given the specific wording and transitional clauses within the agreements. The Court held that the Multi-Enterprise Agreement 2019, along with the specific enterprise agreements, applied to the transferred employees under the new employer. The decision was grounded in the interpretation of the Fair Work Act and the agreements, which indicated that the new employer must adhere to the terms previously agreed upon by the previous employer. This interpretation ensured continuity of employment terms for the transferred employees.

The Commission's decision was clear and definitive, providing guidance on the application of employment agreements in the context of employee transfers. It confirmed the applicability of existing agreements to the new employer and clarified the legal obligations in such circumstances. This decision is likely to have significant implications for future employee transfers within the industry, ensuring that employees' rights and conditions are protected under the relevant agreements.

Orders