Fair Work Act 2009

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

RUC MINING CONTRACTORS ENTERPRISE AGREEMENT 2020 [AE507700]

Application for an order relating to an instrument covering new employer and transferring employees to be employed by Redpath Australia Pty Ltd under the Redpath Australia Enterprise Agreement 2024 - order made

• [1] Redpath Australia Pty Ltd (Redpath/the new Employer/the Applicant) made an application pursuant to s.318 of the Fair Work Act 2009 (the Act) for orders pursuant to ss.318(1)(a) and (b) that the RUC Mining Contractors Enterprise Agreement 2020 (the RUC Agreement) not cover it or any of the employees that have or will transfer (the transferring employees) to it from RUC Cementation Mixing Contractors Pty Ltd (RUC/the old Employer). The application sought that the Redpath Australia Enterprise Agreement 2024 (the Redpath Agreement) cover the transferring employees. The application sought orders pursuant to ss.318(1)(a) and (b).

• [2] The circumstances of the application are that the Applicant and RUC (the old Employer) perform shaft sinking work in connection with, or incidental to the development of mining and/or mineral processing of ore, including at the Appin and Tanami mine sites ('the worksites'). The Redpath Agreement covers and applies to Redpath employees performing the same or substantially the same work as the transferring employees.

• [3] Section 311 of the Act sets out the circumstances in which a transfer of business occurs. It states:

Meanings of transfer of business, old employer, new employer and transferring work

(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).

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer."

New employer is associated entity of old employer

(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"

• [4] Subsections 311(1) and (2) provide the meaning of a transfer of business and a transferring employee. Pursuant to s.311(1), the transfer of business from RUC (the old employer) to Redpath (the new employer) is satisfied where the employment of an employee with RUC has terminated whereby the employee within the 3 months of termination, is employed by Redpath, and the work performed for Redpath is the same or substantially the same as the work performed for RUC and there is a connection between RUC and Redpath as described in any of ss.311(3) to (6). As outline below, s.311(5) is satisfied and the work performed for Redpath is the same or substantially the same as the work performed for RUC. In accordance with ss.311(1)(a) and (b), Redpath made offers of employment to RUC employees to become their new employer. There is a transfer of business for present purposes. As such, s.311(2) is similarly satisfied given that ss.311(1)(a) to (c) are satisfied.

• [5] Subsection 311(5) of the Act contemplates a connection between two organisations where the work in question is insourced in the manner that has occurred here. RUC was engaged to provide their labour hire employees to perform work at the same worksites as Redpath. Redpath made offers of direct employment to 130 individuals who are currently employed by RUC to perform that work at the worksites. These offers of employment are to carry out the same or substantially the same work that the employees presently carry out for RUC at the worksites. As such, pursuant to s.311(5) of the Act, there is a connection between the old employer and the new employer.

• [6] Section 313 of the Act provides that "If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee's employment with the old employer," then:

"(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer..."

• [7] Those legislative tests are met in the circumstances.

"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) 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, 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;

• [9] Redpath has standing or is entitled under s.318(2)(a) of the Act to bring the application as the new employer. The application relies upon the terms of s.318(1)(a) of the Act to, in effect, prevent the RUC Agreement covering the transferring employees, and relies on s.318(1)(b) of the Act to confirm the coverage of the Redpath Agreement in respect of both itself and those transferring employees.

• [10] In dealing with the application, the Commission is required to have regard to each of the matters in s.318(3) of the Act in determining whether the proposed orders should be made. I now turn to deal with each of those considerations, which all weigh in favour of the granting of the application.

The Views of the New Employer - Section 318(3)(a)(i) of the Act

• [11] In accordance with s.318(3)(a)(i) and (ii) of the Act, the Commission has an obligation to take into account the views of the new employer and separately the transferring employees that would be affected by the proposed order to cover the new employer and the transferring employees.

• [12] Redpath as the Applicant and the new employer supports the application and the orders that it proposes should be made. In so doing, it seeks to ensure that employees of Redpath who perform work at the worksites are covered by a common set of terms and conditions. This will also have business synergy and mitigate the negative impact on productivity and work relationships of having to manage and administer multiple employment arrangements with employees performing the same or substantially the same work. This factor weighs in favour of the proposed orders being made.

The Views of the Transferring Employees - Section 318(3)(a)(ii) of the Act

• [13] The Applicant filed a Witness Statement of Emma Fairley, the General Manager - People at Redpath. That evidence set out the information of the comparison between the Redpath Agreement and the RUC Agreement that the transferring employees were provided. The Statement also set out the majority support that the Applicant had received from the transferring employees in relation to the Applicant making this application. That support was demonstrated by their signing of the new employment agreements.

• [14] The Applicant made 130 offers of employment, and 128 transferring employees accepted the offer of employment.[1] Transferring employees, on accepting the offers of employment, were asked to indicate whether they supported the Applicant's application to the Commission for the Redpath Agreement to apply to them instead of the RUC Agreement.[2] Of the 128 transferring employees, 125 transferring employees stated that they supported the application, and 3 transferring employees stated that they did not support the application.[3] The Commission held a Hearing on 22 December 2025 by Microsoft Teams for any party wishing to provide their viewpoint. The Employer confirmed that they had, as per the Directions, placed copies of the Notice of Listing and the application on workplace notice boards so that the transferring employees were aware of the Hearing and could join independently via the Microsoft Teams link. No further views were expressed at the Hearing.

• [15] The information before the Commission, is that a strong majority of transferring employees support the application. I am satisfied that this consent is based upon proper information and is a genuine position. Redpath provided the employees with relevant information on s.318, and the comparison of entitlements between the Agreements and their offer of employment. They were given the opportunity regarding the provision of information to consult Redpath by phone or email, and staff at the Appin worksite had the opportunity to consult in person. Following that, the employees provided a signed acknowledgement of their consent to transfer to the Redpath Agreement. This factor weighs in favour of the proposed orders being made.

Whether any Employees would be Disadvantaged by the Order in Relation to their Terms and Conditions of Employment - Section 318(3)(b) of the Act

• [16] I am satisfied that the employees would not be disadvantaged in relation to their terms and conditions of employment by the making of an order. As identified in the application the Applicant set out the comparison of entitlements:

"There are many aspects of the Redpath EA which are more beneficial than the terms of the RUC EA, including in relation to:

1. base rate of pay - unlike the RUC EA which provides a "Minimum Hourly Rate" and no additional overtime, penalties and loadings payable on that rate, the Redpath EA provides a higher base rate of pay and additional allowances, overtime, penalties and leave loading. Further, the "Minimum Hourly Rate" under the Redpath EA is higher than the "FWC Base Rate" under the RUC EA;

1. allowances - under the Redpath EA, employees are entitled to the following:

1. shift allowance - $37.60 per night or afternoon shift worked;
2. first aid allowance - $5.11 per shift worked;
3. tool allowance - $4.95 per shift worked;
4. leading hand allowance - calculated in accordance with the Mining Industry Award - as at 1 July 2025:

(i) $47.01 per week for 3-10 employees;

(ii) $59.83 per week for 11-20 employees; and

(iii) $80.45 per week for more than 20 employees.

1. penalty rates for overtime, weekend work and public holidays, including a minimum payment of 3 hours for each engagement on a Saturday, Sunday or public holiday;

1. individual flexibility arrangements (IFA) - under the Redpath EA, employees can amend the following EA provisions via an IFA: hours of work; meal breaks and rest pauses; remuneration including overtime rates, penalty rates; allowances; averaging of wages; leave; stand down; and training. In comparison, the RUC EA only permits employees to amend the EA provisions via an IFA in relation to: arrangements about when work is performed; overtime rates; penalty rates; allowances; and leave loading;

1. taking of annual leave - contrary to the RUC EA which only pays annual leave loading after the first 12 months of service, the Redpath EA pays annual leave at the higher of the Flat Shift Rate, Flat Hourly Rate or the base rate plus 17.5% leave loading;

1. operational changes to rosters - under the Redpath EA, employees are entitled to be provided with at least 48 hours' notice of any roster changes. There is no equivalent in the RUC EA."

• [17] The employees had signed this offer of employment, after receiving this information, accordingly. This factor weighs in favour of the proposed orders being made.

Nominal Expiry Date of the Agreement - Section 318(3)(c) of the Act

• [18] The nominal expiry date of the RUC Agreement is 6 April 2024. The Redpath Agreement has a nominal expiry date of 21 January 2029.

• [19] Therefore, in making the orders, the transferring employees will have the advantage of a more current instrument, and the parties would have certainty around their terms and conditions for a longer period under the Redpath Agreement than the RUC Agreement. This factor weighs in favour of the proposed orders being made.

Negative Impact of the RUC Agreement on Productivity - Section 318(3)(d) of the Act

• [20] I am satisfied that there would be a negative impact on productivity of Redpath's workplace if the orders are not made. Redpath submitted that it would cause a negative impact on productivity as it would require them to maintain two different sets of terms and conditions for the present workforce and the Transferring Employees. This factor weighs in favour of the proposed orders being made.

Economic Disadvantage for Redpath as a Result of the RUC Agreement - Section 318(3)(e) of the Act

• [21] If the RUC Agreement and the Redpath Agreement were to be applicable, it is considered that this would cause additional administrative arrangements for different sets of employees and require training to facilitate their implementation (that would need to be funded by Redpath). This factor weighs in favour of the proposed orders being made.

Degree of Business Synergy Between the RUC Agreement and any Workplace Instrument that Already Covers the Applicant - Section 318(3)(f) of the Act

• [22] The Applicant submitted that the RUC Agreement is customised to RUC's specific business operations and has little, if any, business synergy with the Redpath Agreement. The Applicant argued that given business synergy would be affected by the different entitlements affecting working conditions of different employees, that this supports the making of the order. Whilst both the RUC Agreement and the Redpath Agreement, cover employees performing the same work or substantially the same work, having differences in the entitlements between employees at a site and the administration of such, affects the business synergy. This factor contributes to the orders being made.

• [23] The public interest in this context is influenced by the Objects of this Part of the Act in s.309 and those adopted by the Act more broadly. There are no issues of public interest argued in this matter weighing against the orders sought being made. Further, the granting of the application would be consistent with those Objects. This factor weighs in favour of the proposed orders being made.

• [24] I am satisfied that a transfer of business has occurred in accordance with the Act, in that the 128 relevant employees of RUC have or will transfer to Redpath. I am also satisfied that the RUC Agreement is a transferable instrument, and subject only to the orders sought under this application, would cover Redpath and the transferring employees.

• [25] Having considered each of the matters in s.318(3) of the Act, it is appropriate for the Orders to be made as sought in the application.

• [26] In accordance with s.318(4) of the Act, the Order must not come into operation before the later of the following:

• the time when the transferring employee becomes an employee of Redpath;
• the day on which the Order is made.

• [27] The Order [PR795508] will issue in conjunction with this Decision. The application sought that the Order come into effect from the date of this Decision. The Order as sought in the application will come into effect from the date of this Decision, which, on the information provided, is the later of the two dates as set out in s.318(4) above.

[1] Witness Statement of Emma Fairley [16].

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