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 employees - orders made

• [1] Redpath Contract Services Pty Ltd (RCS) provides underground mining services. In March 2024, RCS signed a share purchase agreement to acquire RUC Mining Contractors Pty Ltd (RUC). Around 118 employees of RUC have accepted offers of employment with RCS during 2025 (Transferring Employees). RCS has applied under s.318 of the Fair Work Act 2009 (FW Act) for orders the effect of which would be that the Redpath Contract Services National Enterprise Agreement 2022 (Redpath EA) will cover the Transferring Employees rather than the otherwise applicable transferable instrument, the RUC Mining Contractors Enterprise Agreement 2020 (RUC EA).

• [2] I am satisfied that it is appropriate to deal with the application on the papers.

• [3] Section 311 of the FW Act sets out when a transfer of business will be taken to have occurred. I am satisfied it is likely that there will be a transfer of business from RUC to RCS within the meaning of s.311(1) of the FW Act based on the content of the application and the witness statement of Emma Fairley (General Manager - People) dated 21 November 2025.

• [4] The RUC EA was approved by the Commission on 7 April 2020. It is a transferrable instrument within the meaning of s.312(1) of the FW Act.

• [5] The application has been made by RCS, the new employer of the Transferring Employees. The requirement under s.318(2) of the FW Act has therefore been met.

Section 318(3) - Matters that the FWC must take into account

Section 318(3)(a) - the views of the new employer and the employees who would be affected by the order

Section 318(3)(a)(i) - the views of the new employer

• [6] RCS clearly supports the making of the orders sought.

Section 318(3)(a)(ii) - the views of the employees

• [7] Ms Fairley's witness statement confirms that 118 Transferring Employees have accepted offers of employment from RCS. Ms Fairley provided evidence that 99 of those Transferring Employees have expressed support for the application, 18 Transferring Employees indicated they did not support the application, and one employee did not express a view. Given the apparent opposition to the application from around 18 Transferring Employees, I provided the Transferring Employees with an opportunity to raise any concerns about the application directly with the Commission. No employees provided material to the Commission in response to my invitation.

• [8] I am satisfied based on Ms Fairley's evidence that the views of the employees weigh in favour of making the orders sought.

Section 318(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

• [9] RCS provided a comparison of the terms and conditions in the Redpath EA and the RUC EA as an attachment to its application.

• [10] I am satisfied that the conditions in the Redpath EA are superior to the conditions in the RUC EA based on an overall assessment and that no employee will be disadvantaged if the orders are made. The Transferring Employees have been provided with an opportunity to raise concerns with the application. No concerns have been raised.

• [11] I consider this factor weighs in favour of making the orders sought.

Section 318(3)(c) - if the order relates to an enterprise agreement - the nominal expiry date of the agreement

• [12] The RUC EA nominally expired on 6 April 2024. The Redpath EA nominally expires on 7 November 2026. I consider these dates weigh in favour of making the orders because the result will be the Transferring Employees being covered by a more contemporaneous instrument.

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

• [13] I accept there will be a minimal negative impact on productivity if RCS must apply the Redpath EA, and the RUC EA, to employees performing the same work.

• [14] This factor weighs in favour of making the orders.

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

• [15] I accept there will be a minimal amount of economic disadvantage if RCS is required to apply the RUC EA to the Transferring Employees and then the Redpath EA to its other relevant employees. However, I do not consider this constitutes "significant economic disadvantage". I consider this to be a neutral factor.

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

• [16] I do not consider business synergy is going to be overly impacted by which industrial instrument applies to the Transferring Employees. I consider this to be a neutral factor.

• [17] I am satisfied it is in the public interest to make the orders sought. The orders will generate operational benefits for RCS. The orders will result in improved enterprise agreement conditions for the Transferring Employees. This factor weighs in favour of making the orders.

• [18] Having considered the matters above, while there are two neutral considerations, all other matters weigh towards the granting of the application.

• [19] I am satisfied that the orders as sought should be granted. The orders will be issued concurrently with this decision.

• [20] The orders will come into operation on the date the orders are made.

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