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

Application for orders relating to transferable instrument - transferring instrument not to apply - section 318 - whether transfer has occurred - section 311 - no connection between old employer and new employer - no transfer of business - no transferable instrument - order not issued

[1] An application has been made by OZ Minerals Carrapateena Pty Ltd (OZ Minerals) pursuant to s. 318 of the Fair Work Act 2009 (the Act) seeking orders relating to a transferable instrument.

[2] Orders are sought by OZ Minerals in the following terms:

(a) Pursuant to section 318(1)(a) of the FW Act, the Red Appointments NT Pty Ltd On-Hire Employee Agreement 2023 (RED EA), being a transferable instrument that would, or would be likely to, cover the Applicant and its employee previously employed by Red Appointments NT 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 (MI Award) (or any successor award) does, and will, cover the Transferring Employee in respect of their employment with the Applicant; and

• (c) 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.[1]

• [3] These orders are of little utility unless the Red Appointments NT Pty Ltd On-Hire Employee Agreement 2023 (Red Agreement) is a transferring instrument[2] that will apply to Mr Scott McLeod as a transferring employee[3] due to the operation of s. 313 of the Act.

[4] Accordingly, an examination is required of the provisions in s. 311 to determine whether a transfer of business has occurred and whether Mr McLeod is a transferring employee.

[5] The application filed on 9 January 2026 contained submissions and several attachments. I have taken these documents on their face value and relied on the submissions and attached documents in making this decision.

[6] OZ Minerals made further submissions at a Directions Hearing on 24 February 2026 and by email.

[7] It is apparent from the application that Mr McLeod has been employed by Red Appointments NT Pty Ltd (Red Appointments) as a Materials Handling Technician to perform work for OZ Minerals since 4 December 2024.

• [8] On 11 July 2025 OZ Minerals says they made an offer of direct employment to Mr McLeod as a Materials Handling Technician, performing the same work that he has been undertaking since 4 December 2024 with Red Appointments. A confirmation letter filed with the Commission indicates that Mr McLeod has accepted this offer of direct employment with OZ Minerals and will commence 1 March 2026 as a Materials Handling Technician.[4]

[9] The transferring work in the present matter is the work being performed by Mr McLeod as a Materials Handling Technician.

[10] OZ Minerals submits that Mr McLeod will be ceasing employment with Red Appointments and within 3 months will become employed by OZ Minerals, satisfying the criteria in ss. 311(1)(a)-(b).

[11] The criteria in s. 311(1)(c) is met as the work that was performed by Mr McLeod for Red Appointments was the same, or substantially the same work that he will be performing for OZ Minerals.

• [12] It is therefore necessary to examine whether there is a connection between Red Appointments and OZ Minerals of the kinds described in ss. 311(3)-(6).[5]

Transfer of assets from old employer to new employer

• [13] OZ Minerals submits that neither it, nor its associated entities have beneficial use of some or all of the assets that Red Appointments or its associated entities owned or had the beneficial use of assets that relates to the transferring work.[6] Accordingly, s. 311(3) does not apply.

Old employer outsources the transferring work to new employer

[14] There will be a connection between Red Appointments and OZ Minerals under s. 311(4) if transferring work performed by Mr McLeod as an employee of OZ Minerals is because Red Appointments has outsourced the transferring work to OZ Minerals.

[15] A definition of outsourcing does not appear in the Act, but the Commission has consistently used the Macquarie Dictionary meaning "to contract (work) outside the company rather than employ more in-house staff."

[16] OZ Minerals is the entity that requires the work of Materials Handling Technician to be performed and they engage Red Appointments to provide labour hire to supplement their own internal workforce who also undertake this work. Based on the submissions provided, it cannot be said that Red Appointments have outsourced the transferring work to OZ Minerals.

[17] During the period of Mr McLeod's employment with Red Appointments, OZ Minerals submit that they also employed several employees internally to perform substantially the same work as that being done by Mr McLeod.

[18] In those circumstances it cannot be said that Red Appointments or its associated entities outsourced the transferring work to OZ Minerals or its associated entities and the criteria in s. 311(4) is not met.

New employer ceases to outsource the transferring work to old employer

• [19] The submissions of OZ Minerals are that there is a team made up of both OZ Minerals employees and contractors working as 'Materials Handling Systems'.[7] Two employees are employed by Red Appointments and once Mr McLeod becomes employed by OZ Minerals on 1 March 2026, the other employee in that role will remain engaged by Red Appointments.[8]

[20] In circumstances where Red Appointments will continue to provide labour hire to OZ Minerals in relation to the transferring work, I find that OZ Minerals are not ceasing to outsource the transferring work to Red Appointments and accordingly, s. 311(5) is not met.

[21] Due to the finding above, it is not necessary to determine whether the work was initially outsourced to Red Appointments as I am satisfied that the connection in s. 311(5) has not been met in any event.

New employer is associated entity of old employer

[22] Based on the submissions, it is not the case that OZ Minerals is an associated entity of Red Appointments when the transferring employee becomes employed by OZ Minerals and therefore s. 311(6) is not relevant.

[23] Having considered the submissions before me, it is clear that upon 1 March 2026 Mr McLeod's employment with Red Appointments will terminate and he will commence performing substantially the same work for OZ Minerals. However, I find that there is not a connection between Red Appointments and OZ Minerals of the kind described in ss. 311(3)-(6) and therefore, no transfer of business has occurred. Since there has not been a transfer of business, there is no transferrable instrument and accordingly there is no utility in making the orders sought and I decline to do so.

[7] Email submission from OZ Minerals dated 24 February 2026.

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