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

Application for an order relating to instruments covering a new employer and transferring employees - transfer of business from an old employer to new employer -new employer wishes to standardise the terms and conditions of employment of transferring and non-transferring employees - no employees disadvantaged by proposed order in relation to terms and conditions of employment - appropriate and not contrary to public interest to make orders sought - discretion exercised - application granted.

• [1] BHP WAIO Pty Ltd has made an Application under s 318 of the Fair Work Act 2009 (Cth) for orders in relation to employees who are:

a) currently engaged by OS ACPM Pty Ltd who are performing mining work at its operations;

b) currently covered by the Operations Services Maintenance Agreement (OS Agreement); and

1. anticipated to commence work directly with BHP WAIO (Transferring Employees).

• [2] BHP WAIO seeks the following Orders:

a) that the OS Agreement, as a transferable instrument, not cover BHP WAIO and Transferring Employees with respect to their employment with BHP WAIO; and

b) that the Transferring Employees instead be covered by the Whaleback FIFO Agreement 2013 on commencement of employment with BHP WAIO.

• [3] I have considered all of the factors set out in s 318(3) and have concluded that it is appropriate and not contrary to the public interest to make the Orders sought under s 318. The Orders issue concurrently with this decision.

• [4] My detailed reasons for granting the Orders follow.

• [5] BHP WAIO submitted evidence from Ms Nicole Elkovich, Principal Employee Relations in support of the Application.

• [6] The Application concerns approximately 1 OS ACPM employees who is performing mining work at its operations and is covered by the OS Agreement.

• [7] Both BHP WAIO and OS ACPM operate in the mining industry. OS ACPM and BHP WAIO are, when the Transferring Employees commenced or will commence employment with the Applicant, associated entities with the meaning of s 311(6A) of the Act.

• [8] On Friday 10 October 2025, BHP WAIO provided the relevant employee with an information pack which included a cover letter that:[1]

(a) outlined BHP WAIO's intention to seek a s 318 order so that the Whaleback Agreement would apply in respect of the relevant employee's employment with BHP WAIO (as opposed to the OS Agreement);

(b) explained that if the s 318 order sought in this Application is not granted, then the OS Agreement may continue to apply to their employment with BHP WAIO;

(c) asked the relevant employee to indicate whether they support BHP WAIO's application for a s 318 order, and the application of the Whaleback Agreement to their employment with BHP WAIO;

(d) informed the relevant employee that if they had any questions about the s 318 application or their proposed employment with BHP WAIO, they should raise these questions with the hiring team.

• [9] On Tuesday 21 October 2025 BHP WAIO reminded the relevant employee by email of:[2]

(a) BHP WAIO's intention to seek a s 318 order so that the Whaleback Agreement would apply in respect of the relevant employee's employment with BHP WAIO (as opposed to the OS Agreement);

(b) explained that if the s 318 order sought in this Application is not granted, then the OS Agreement may continue to apply to their employment with BHP WAIO.

(c) asked the relevant employee to indicate by return email whether they support BHP WAIO's application for a section 318 order, and the application of the Whaleback Agreement to their employment with BHP WAIO.

• [10] On 23 October 2025, the relevant employee confirmed in writing that they understood the Application and supported it.[3]

• [11] Section 317 of the Act enables the Commission to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

• [12] The discretion to make the Orders sought by BHP WAIO under s 318(1) of the Act will only be exercised after the factors set out in s 318(3) of the Act are considered.[4] These factors, which must be read having regard to the objects of the Part, are intended to enable the Commission to balance appropriately the protection of employees' entitlements under certain instruments with the need for some flexibility to depart from the default rules about coverage of instruments following a transfer of business.[5]

• [13] Section 318 of the Act sets out the circumstances in which an order such as that sought by Redpath may be made by the Commission:

318 Orders relating to instruments covering new employer and transferring employees

(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.

(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).

(3) In deciding whether to make the order, the FWC must take into account the following:

(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;

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;

• [14] The exercise of the discretion given to the Commission in this regard is undertaken within the object of this Part of the Act, which states as follows:

The object of this Part is to provide a balance between:

(a) the protection of employees' terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and

(b) the interests of employers in running their enterprises efficiently;

if there is a transfer of business from one employer to another employer.

4.1 s 318(2)(a) - application by the new employer of a person who is likely to be the new employer

• [15] BHP WAIO has standing to make the Application as the new employer or likely new employer.

4.2 s 318(3)(a)(i) - the views of the new employer of a person who is likely to be the new employer

• [16] BHP WAIO submits that the activities in both workplaces by the selected workforce are substantially similar. I am satisfied that BHP WAIO, as the likely new employer, wishes to standardise the terms and conditions of employment of transferring and non-transferring employees. Moreover, in the BHP WAIO's view, granting the Orders will:

a) create employment simplicity by having the one industrial instrument apply to current employees of BHP WAIO Pty Ltd at its operations as well as the Transferring Employee;

b) align rostering arrangement across BHP WAIO Pty Ltd;

c) create operational synergies around standard crib times and shift duration, allowing for further operational efficiencies

d) create cultural synergies and mitigate any disharmony within the workforce and concerns from employees doing the same of similar work as to why two different sets of terms and conditions apply; and

e) mitigate the need for additional and complex payroll standard and requirements.

4.3 s 318(3)(a)(ii) - the views of the employees who would be affected by the order

• [17] BHP WAIO provided correspondence to the Transferring Employees that explained the effect of the Application on their employment. The Transferring Employees also had the opportunity to provide their views on the Application to my Chambers.[6] My Chambers did not receive any correspondence from the Transferring Employees.

4.4 s 318(3)(b) - whether any employees would be disadvantaged by the order

• [18] I have reviewed the terms of the Whaleback Agreement and OS Agreement. I accept that that no employees would be disadvantaged by the proposed Orders in relation to their terms and conditions of employment.

• [19] I note that the nominal expiry date of the OS Agreement is Saturday 2 June 2029.

4.6 s 318(3)(d) & (e) - negative impact on productivity and significant economic disadvantage

• [20] BHP WAIO submits there are productivity benefits from having a single unifying agreement (Whaleback Agreement) covering the Applicant's workforce who perform the same or substantially the same work, both Transferring Employees and employees who are not Transferring Employees. If the OS Agreement remains in place, productivity will be negatively impacted. BHP WAIO submit this along with the minimized operational efficiencies would cause economic disadvantage.

• 4.7 s 318(3)(f) - degree of business synergy

• [21] BHP WAIO submits that there is little, if any, business synergy between the Whaleback Agreement ward and the OS Agreement as they provide for different employment conditions. BHP WAIO submits the OS Agreement is customized to OS ACPM Pty Ltd specific business operations as a service provider across various sites, whereas the Award befits its direct engagement of employees at its operations.

• [22] I am satisfied that it is in the public interest to have cohesive, standardised and harmonised conditions of employment applying to employees doing the same or similar work in circumstances where there is no detriment to transferring employees.

• [23] In accordance with s 318(4), the Orders will come into effect on the date that the Orders are made, or from the time when the Transferring Employees commence working for BHP WAIO, whichever is the latter.[7]

[4] Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1259].

[6] Directions dated Tuesday 4 November 2025 at [6].

[7] PR795589.

Printed by authority of the Commonwealth Government Printer