Fair Work Act 2009

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

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

• [1] OZ Minerals Carrapateena Pty Ltd (Applicant) has made an application under s.318 of the Fair Work Act 2009 for orders relating to a transfer of business.

• [2] The Applicant is an entity of the BHP Group which employs employees to work at the Carrapateena Mine. Mr Tim McKechnie (Transferring Employee), who was employed at BHP Olympic Dam Pty Ltd, has requested to transfer his employment to the Applicant. He has been offered and accepted an offer of employment with the Applicant on terms and conditions no less favorable overall than those applying at Olympic Dam.

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

a) Pursuant to section 318(1)(a) of the FW Act, the Olympic Dam Employee Agreement 2023 (Olympic Dam Agreement) being a transferable instrument that would, or would be likely to, cover the Applicant and its employees previously employed by Olympic Dam Corporation Pty Ltd (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, the Mining Industry Award 2020 (Ml Award) (or any successor award) does, and will, cover the Transferring Employee in respect of their employment with the Applicant; and Pursuant to section 318(4) of the FW Act, the orders shall come into operation on the day on which the orders are made or the time when the Transferring Employee becomes employed by the Applicant, whichever is the later date.

• [4] The conditions for a transfer of business are set out in s.311(1) of the Act, which is set out as follows:

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

• [5] There is no question that the requirements in s.311(1)(a), (b) and (d) are met, in part because the Applicant acknowledges that subsection 6, which is set out below, applies in this case:

"(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer."

• [6] There is a question, though, as to whether s.311(1)(c) is applicable. In this regard, the Applicant submits it is not clear whether the Transferring Employee will be performing the same or substantially the same work. If not, there is no transfer of business, and there are no transferring employees.

• [7] In assessing whether the work is the same, or substantially the same, the findings of Jagot J in Crown Sydney Gaming Pty Ltd v United Workers' Union[1] are relevant:

"(1) the 'work' an employee performs or performed is not confined to the mere carrying out of tasks in an abstract sense. Depending on the circumstances, the conception of the 'work' an employee performs or performed for the purposes of s 311(1)(c) may include the location at which the work is performed and other aspects related to the performance of the tasks comprising the job or work;"[2]

• [8] The Applicant filed evidence in the form of a statutory declaration from its Manager Employee Relations who explained the differences between the work, mining activities and methods, location and other matters applicable at each site.

• [9] Based on the evidence before me, I am satisfied that the work is not the same or substantially the same as contemplated by s.311(1)(c).

• [10] Given my finding that the requirement in s.311(1)(c) is not met, this is not a case of transfer of business and consequently there are no transferring employees. As such, I cannot make the orders sought under s.318 of the Act and the application is dismissed.

[1] Crown Sydney Gaming Pty Ltd v United Workers' Union [2022] FCA 97.

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