Fair Work Act 2009

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

Application for an order relating to instruments covering new employer and transferring employee.

• [1] OS ACPM Pty Ltd (Applicant) has applied for orders pursuant to s.318 of the Fair Work Act 2009 (the Act) relating to instruments covering new employer and transferring employee.

• [2] The Applicant is an entity of the BHP Group which provides maintenance services at various BHP Group operations.

• [3] An employee of BHP WAIO Pty Ltd, Ms Chantelle Baker (the Employee), who had been employed as a Maintenance Associate on a fly-in-fly-out roster covered by the Mining Area C Operations Agreement 2015 (MAC Agreement) sought to transfer to another role with the Applicant which is covered by the Operations Services Maintenance Enterprise Agreement (OSM Agreement). The Employee accepted an offer of employment made by the Applicant for the new role which commences on 1 October 2025.

• [4] The Applicant seeks orders in the following terms:

"a) Pursuant to section 318(1)(a) of the FW Act, the Mining Area C Operations Agreement 2015 (MAC Agreement), being a transferable instrument that would, or would be likely to, cover the Applicant and its employees previously employed by BHP WAIO Pty Ltd (ABN 18 008 852 784) formerly BHP Billiton WAIO Pty Ltd (WAIO) under the MAC Agreement (Transferring Employee) because of section 313(1)(a) of the FW Act does not, and will not, cover the Applicant and the Transferring Employee;

• b) Pursuant to section 318(1)(b) of the FW Act, an enterprise agreement that covers the Applicant, being the Operations Services Maintenance Enterprise Agreement (OSM Agreement) does, and will, cover the Transferring Employee; and

c) Pursuant to section 318(4) of the FW Act**,** the orders shall come into effect from the date the orders are made or when a Transferring Employee is employed by the Applicant, whichever is the later date."

• [5] Section 318 of the Act relevantly provides:

"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:

(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."

• [6] I am satisfied that the Applicant has standing to apply for the orders sought in the present application.

• [7] I am also satisfied that by virtue of s.311(1), a transfer of business will, or is likely to, occur and that the Employee who has accepted employment offer with the Applicant will be a transferring employee within the meaning of the Act, and that the MAC Agreement is a transferrable instrument.

• [8] I now turn to consider the matters in s.318(3) which the Commission must take into account in determining whether to make the orders sought, having regard to the grounds and submissions advanced by the Applicant.

Views of the new employer and affected employees (s.318(3)(a))

• [9] The Applicant wishes to ensure that all of its employees who perform work of the same kind as will be performed by the Employee are covered by a common set of terms and conditions which is currently achieved by the OSM Agreement.

• [10] The Applicant submitted that the granting of the order would create employment simplicity and operational synergies and mitigate the need for additional and complex payroll standards and requirements.

• [11] In terms of the view of the Employee, she applied for the role which she was offered and accepted. The Applicant explained its intention to make this application as part of her offer of employment. She advised the Applicant by email that she approved the making of this application.

Whether any employees would be disadvantaged by the order - s.318(3)(b)

• [12] The Applicant provided an outline of conditions which show that the Employee would not be disadvantaged if the application is granted. Rather, the new conditions of her employment are more beneficial than the terms of the MAC Agreement.

• [13] The MAC Agreement has passed its nominal expiry date of 12 August 2019, and the OSM Agreement has an expiry date of 2 June 2029.

• [14] The Applicant submits that the Transferring Employee would have the benefit of established terms and conditions of employment under the OSM Agreement if the proposed Orders are made.

Whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace - s.318(3)(d)

• [15] The Applicant submits that it would cause a negative impact on productivity of the Applicant's workplace if the orders sought are not made, which primarily relate to the costs associated with applying two different agreements.

Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer - s.318(3)(e)

• [16] If the orders are not made, the Applicant submits that the management of the additional transferable instrument would cause economic disadvantage as operational efficiencies would be minimised.

The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer - s.318(3)(f)

• [17] The Applicant submits that the OSM Agreement is better suited to the Applicant and its employee as it is customised to the Applicant's operations as a services contractor providing maintenance services across the various BHP Group operations, whereas the MAC Agreement is designed to apply to the specific operations at the Mine.

• [18] The Applicant submits that it is a matter of public interest that the workplace is a cohesive, harmonious and productive workplace. Further, there are no issues of public interest that would weigh against the proposed orders being made.

• [19] Having considered the material provided and taking account of all the matters in s.318(3) of the Act, I am satisfied that it is appropriate to grant the application. The orders will be issued separately with this decision.

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