TRANSFER OF BUSINESS – enterprise agreement – ss.318, 739 Fair Work Act 2009 – two applications – applications concerned both Smit Lamnalco Towage (Australia) P/L, Smit Marine Australia P/L (‘SMA’) and Australian Institute of Marine and Power Engineers (‘AIMPE’) – first application by AIMPE for Commission to deal with dispute concerning provisions of SMIT Marine Australia P/L and the AIMPE Enterprise Agreement 2015 (SMA Agreement) relating to transfer of business – parties unable to reach resolution about dispute application – second application by Smit Lamnalco for order under s.318 to be made relating to instruments covering new employer and transferring employees in the context of a transfer of business – decision deals with s.318 application (second application) – application concerned transferring SMA employees who were employed as engineers and covered by agreement – Smit Lamnalco proposed SMA employees be transferred to Smit Lamnalco, seeking an order that SMA EA will not cover Smit Lamnalco and any transferring employees and Smit Lamnalco Towage (Australia) P/L & AIMPE Marine Engineers Harbour Towage Enterprise Agreement (Smit Lamnalco EA) will cover any transferring employees – this order to be subject to undertakings set out in draft order by Smit Lamnalco – context of different employing entities on Smit group contracts with operations conducted by different companies within group – currently 36 engineers employed under SMA EA – Smit Lamnalco and SMA in process of integrating, with Smit Lamnalco seeking to have all its group operations conducted by single entity, all employees employed by single employer and one enterprise agreement cover all operations – AIMPE opposed application – application called for consideration of most appropriate agreement to cover operations of new employer having regard to factors in s.318(3) – new employer Smit Lamnalco favoured application of Smit Lamnalco EA out of its desire for uniformity and unity of purpose with respect to safety and operating practices, especially when employees are transferred between ports – Commission considered its reasons for supporting change as logical and well-intentioned – employees did not support change due to wanting opportunity to bargain for new enterprise agreement to apply to Gladstone operations – disadvantage to employees of having their enterprise agreement extended by 12 months without any counterbalancing benefit and loss of opportunity to take protected industrial action – Commission considered that while existing benefits of Gladstone agreement intended to continue by way of undertaking, loss of an opportunity to support claims with protected industrial action must be given weight – no significant economic disadvantage to Smit Lamnalco by inheriting SMA EA – held while understandable benefit in bringing operations under one agreement, as parties are not agreed on rationalisation of agreement coverage all attempts should be made to achieve outcome through bargaining – Commission not persuaded appropriate to make orders sought – application dismissed. Smit Lamnalco Towage (Australia) P/L
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