Wilpinjong Coal Pty Ltd Summary

[2013] FWC 1824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order re instruments covering new employer and non-transferring employees in agreements

Wilpinjong Coal Pty Ltd
(AG2013/5143)

COMMISSIONER SPENCER

BRISBANE, 25 MARCH 2013

Application for an order regarding instruments covering new employer and non-transferring employees in agreements.

[1] Wilpinjong Coal Pty Ltd (the Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an order that the Wilpinjong Coal Mine Enterprise Agreement 2012 cover non-transferring employees of the Applicant who perform, or are likely to perform, transferring work at the Wilpinjong Mine after 1 April 2013.

[2] In addition, the application seeks an order be made under s.319 that the Black Coal Mining Industry Award 2010, which currently covers the Applicant, not cover employees who perform, or are likely to perform, transferring work at the Wilpinjong Mine after 1 April 2013.

[3] The Applicant has provided a statement in support of its application. The Construction, Forestry, Mining and Energy Union (CFMEU) provided correspondence and did not object to the orders being sought.

[4] I have taken into account the material provided by the Applicant in support of the application, the correspondence from the CFMEU, and the matters listed in s.319(3) of the Act. I am satisfied the order should be issued.

[5] The order, PR535124, will issue with this decision and take effect from 1 April 2013.

COMMISSIONER

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CaseChat Overview and Summary

Wilpinjong Coal Pty Ltd sought an order concerning instruments that covered the new employer and non-transferring employees in agreements. The application was brought before the Fair Work Commission. The primary dispute involved the interpretation and application of certain terms in the agreements following a change in the company's ownership and the subsequent transfer of some of its assets.

The legal issues before the Commission included whether the new employer was bound by the existing agreements and what obligations, if any, the new employer had towards the non-transferring employees. The Commission had to consider the relevant statutory framework, including the provisions of the Fair Work Act 2009, and the implications of the transfer of the business on the employment agreements in place.

The Commission concluded that the new employer was bound by the existing agreements as the transfer of the business constituted a transfer of a 'undertaking' under the Fair Work Act. The Court found that the new employer was required to honour the terms of the agreements for non-transferring employees, as the nature of the business and employment had not fundamentally changed. The decision was based on the principle that employment agreements are intended to protect employees, and a change in ownership should not adversely affect their rights and entitlements. The Commission made orders accordingly, ensuring that the new employer complied with the existing agreements for the non-transferring employees.

Wilpinjong Coal Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established