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 employees - application granted

• [1] Redpath Contract Services Pty Ltd ("the Applicant") has applied to the Commission for an order pursuant to section 318(1)(a) of the Fair Work Act 2009 (Cth) ("the Act"). It seeks an order that the RUC Mining Contractors Enterprise Agreement 2020 ("RUC EA") or any successor agreement does not, and will not, cover certain employees ("the transferring employees") transferring from RUC Cementation Mining Contractors Pty Ltd ("RUC"). Instead, the transferring employees would be covered by the Redpath Contract Services (Raisebore) Enterprise Agreement 2022 ("Redpath EA").

• [2] I issued directions requiring the Applicant to provide to the transferring employees covered by the RUC EA a copy of the directions, a copy of its application, and advice that the transferring employees could make a submission to the Commission if they wished. The Applicant has provided proof of compliance with these requirements.

• [3] I also directed the Applicant to file, and serve on the transferring employees, a statutory declaration or witness statement explaining the circumstances of the proposed transfer of employment, why there would likely be a transfer of business within the meaning of s 311 of the Act, the steps taken to communicate with the transferring employees regarding the circumstances by reference to the documents filed with the Commission, the proposed terms and conditions of employment with the Applicant pursuant to the Redpath EA and how they compare with the RUC EA, and the emails of support said to have been received from transferring employees to date. The Applicant has also provided proof of compliance with these requirements.

• [4] No transferring employee took up the opportunity to make submissions in relation to the application. I have received no notice of any opposition to it.

• [5] Having regard to the material before me, including the application and its annexures, and the materials filed in response to the directions, I find that the Applicant is the new employer or a person who is likely to be the new employer. I have taken into account the Applicant's views and the views of the employees who would be affected by the order, where they have been provided.

• [6] The Applicant submitted and I accept that overall, the transferring employees will not be disadvantaged in relation to their terms and conditions of employment when employed by it.

• [7] The Applicant informed the Commission that the nominal expiry date of the RUC EA is 6 April 2024. The nominal expiry date of the Redpath EA is 2 June 2026.

• [8] The Applicant submitted, and I accept, that failing to make the order would negatively affect its productivity because it would be required to maintain two separate time sheeting activities across the workforces, which would create additional administrative burden for the Applicant's administrators and increase risk of inaccuracies. It would also be required to maintain two different sets of terms and conditions for the one workforce which, for the transferring employees, would be inferior in key respects, to those for the rest of the Applicant's employees.

• [9] The Applicant submitted it would incur economic disadvantage if the order sought was not made, in the form of additional expenses.

• [10] The Applicant submitted that there is little, if any, business synergy between the RUC EA and the Redpath EA as they provide for different employment conditions. Relevantly, in its submission, the RUC EA is customised to the Applicant's specific business operations, whereas the Redpath EA is tailored to the specific circumstances of the Raisebore Division.

• [11] The Applicant relied on its submissions as to the terms and conditions for employees, and the efficiency benefits for the employer, in arguing that the public interest would be served by making the order sought.

• [12] I have considered the foregoing matters and I am satisfied that an order should be made pursuant to section 318 of the Fair Work Act. An order will be issued separately.

Printed by authority of the Commonwealth Government Printer