1 Fair Work Act 2009 s.318 - Application for an order relating to instruments covering new employer and transferring employees BHP WAIO Pty Ltd (AG2025/4054; AG2025/4286) Mining industry COMMISSIONER MCKINNON SYDNEY, 6 MARCH 2026 Application for orders relating to transferable instruments in a transfer of business [1] BHP WAIO Pty Ltd (BHP WAIO) has applied for orders under s.318 of the Fair Work Act 2009 (Cth) (the Act) in connection with a transfer of business and related transfers of employment of Mr Richard Kerr (AG2025/4054) and Mr John Quadizar (AG2025/4286) from OS ACPM Pty Ltd (OS ACPM) to BHP WAIO. The orders sought are: 1. That the Operations Services Maintenance Agreement (OS Agreement) will not cover the transferring employees, and 2. That the Mining Area C Operations Agreement 2015 (MAC Agreement) will cover the transferring employees. [2] BHP WAIO seeks that the orders operate in relation to Mr Kerr and Mr Quadizar, and to all future employees covered by the OS Agreement who transfer from OS ACPM to BHP WAIO. The question is whether the orders sought by BHP WAIO should be made. Orders under section 318 of the Fair Work Act 2009 [3] Part 2-8 of the Act describes when a transfer of business occurs and provides for the transfer of enterprise agreements from one employer to another in connection with a transfer of business. [4] Section 311(1) defines “transfer of business”, and section 312 defines the types of ‘transferable instrument’ that may transfer from one employer to another. Sections 317, 318 and 319 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument covers, or does not cover, the new employer in relation to the transferring employees and non-transferring employees. [2026] FWC 753 DECISION [2026] FWC 753 2 [5] Section 318(1) provides: ‘(1) The FWC may make the following orders: (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.’ [6] On the materials, a transfer of business has or soon will occur for the purposes of subsection 311(1) of the Act from OS ACPM to BHP WAIO because: 1. the employees’ employment with OS ACPM has or will soon terminate, 2. immediately after the termination of employment, the employees will become employed by BHP WAIO, 3. the work affected employees perform is the same for both entities (the transferring work), and 4. there is a connection of the type described in subsection 311(6) (associated entities). [7] The OS Agreement is a transferable instrument. The affected OS ACPM employees, on becoming employees of BHP WAIO, are transferring employees in relation to the transfer of business. The views of BHP WAIO and employees who would be affected by the order [8] By the application, BHP WAIO seeks to bring employees at its mining operations under a common set of terms and conditions contained in the MAC Agreement. It submits that this will promote business synergy and mitigate the negative impact on productivity and work relationships of having to manage and administer multiple employment and payroll arrangements with employees performing the same or substantially the same work within the same employing entity. [9] BHP WAIO further submits that granting the application will align rostering arrangements across BHP WAIO to create operational and cultural efficiencies, including in relation to standard crib times and shift durations, and mitigate workforce disharmony by addressing concerns about two sets of terms and conditions of employment applying to the same or similar work. [10] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia does not oppose the application. The Australian Worker’s Union (AWU) opposes the application to the extent that it would result in orders of a general kind. It is less concerned if the orders made are limited to the affected employees (Mr Kerr and Mr Quadizar). The Mining and Energy Union submits that the OS Agreement is more beneficial than the MAC Agreement and that this speaks against orders generally in relation to future employees transferring from OS ACPM to BHP WAIO. As with the AWU, it is less concerned if the orders are limited to the two employees directly affected. [2026] FWC 753 3 [11] Mr Quadizar and Mr Kent have each accepted an offer of employment from BHP WAIO in the knowledge that this application would be made. The offers of employment are in terms more favourable than either of the enterprise agreements in question. BHP WAIO has been transparent with the employees in relation to its intention to make this application, including by giving the employees adequate information on which to base their decisions. The employees have each provided their express support for the orders sought by BHP WAIO. Whether any employees would be disadvantaged in relation to their terms and conditions of employment [12] The situation appears to be that on an overall basis the two employees will not be disadvantaged because of the value of the contracts of employment that sit over and above the relevant enterprise agreement terms that underpin them. A comparison of the OS Agreement and the MAC Agreement makes plain that the OS Agreement is more favourable for employees than the MAC Agreement in many respects. That is at least in part because of the passage of time – the OS Agreement was approved in June 2025 while the MAC Agreement is more than 10 years old and is currently the subject of bargaining for a replacement agreement. It is relevant to observe that any new agreement to replace the MAC Agreement will also cover the affected employees if the application is granted in relation to their employment. [13] As to future employees transferring from OS ACPM to BHP WAIO, I consider it likely that a similar result will follow. The difficulty is that the overall benefit for the two employees in this case derives largely from contractual entitlements that supplement the applicable enterprise agreement terms. Because contracts of employment are by nature individual arrangements, it is not possible to know with any certainty that this will be the case for future transferring employees. A cautious approach should be adopted in circumstances where the scope of orders sought is wider than the supporting factual matrix. The nominal expiry date of each Agreement [14] The OS Agreement nominally expires on 2 June 2029. As indicated above, the MAC Agreement is more than 10 years old. It nominally expired on 12 August 2019 and is currently the subject of bargaining for a replacement agreement. Whether the OS Agreement would have a negative impact on productivity at BHP WAIO [15] BHP WAIO submits that if OS Agreement continues to apply, it will be required to expend unnecessary resources in onboarding the OS Agreement including by development and implementation of new payroll systems and large-scale training programs to upskill teams across the business from human resources and payroll to operations. It will face additional administrative load and regulatory risk from two separate time sheeting activities across the technical workforces. It will have employees working side by side but under two significantly different sets of terms and conditions. [16] By contrast, BHP WAIO submits that granting the orders will have a positive impact on productivity because the MAC Agreement is specific and bespoke to the location of the transferring work and better suited to its operations. It will mean a single instrument covering the relevant workforce and reduced administrative and regulatory burden. [2026] FWC 753 4 Whether BHP WAIO would incur significant economic disadvantage as a result of coverage by the OS Agreement [17] I accept that there is a cost both in terms of efficiency and resources where two separate enterprise agreements cover the same or similar work at a single site with different terms and conditions of employment. There is no material upon which to make any reliable quantification of this cost as a proportion of BHP WAIO’s overall economic activities and for this reason, I am not satisfied that continuing coverage of the OS Agreement would cause BHP WAIO to incur significant economic disadvantage. Degree of business synergy between the transferable instrument and other workplace instruments covering BHP WAIO [18] Although BHP WAIO submits that there is limited business synergy between the OS Agreement and the MAC Agreement, the comparison of instruments provided indicates differences but also many similarities. The main difference seems to be that each enterprise agreement was tailored to its specific business and industrial circumstances, as one might expect. The public interest [19] The public interest is served where conditions allow industry to operate efficiently and to lift productivity, and in circumstances that promote industrial harmony. I accept that for BHP WAIO, commonality of terms and conditions of employment across its affected workforce will promote these objectives. Balanced against this consideration is the public interest in protecting employee terms and conditions of employment, including under enterprise agreements. Otherwise, the matters relied upon are private as between BHP WAIO and the affected employees. Conclusion [20] On balance, I am satisfied that the conditions for the making of orders have been met. I consider it appropriate to give effect to the agreed position of BHP WAIO and the two employees directly affected by the applications. [21] In relation to the broader scope of orders sought, I accept that orders under s.318 can be made in relation to future employees, and that this can promote business efficiency by streamlining the mechanism available under s.318, including where a large group of employees are covered by a similar set of facts. However, I am not persuaded that it is appropriate in the circumstances of this case to grant orders of such wide import where the available facts are confined to the circumstances of Mr Kerr and Mr Quadizar. [22] Order PR797422 will issue separately to this decision. COMMISSIONER [2026] FWC 753 5 Determined on the papers Printed by authority of the Commonwealth Government Printer <AE529245 PR797421>