1 Fair Work Act 2009 s.319 - Application for an order relating to instruments covering new employer and non- transferring employees OneSteel Manufacturing Pty Limited (Administrators Appointed) (AG2026/1137) DEPUTY PRESIDENT HAMPTON ADELAIDE, 12 JUNE 2026 Application for an order relating to instruments covering new employer and non-transferring employees to be employed by OneSteel Manufacturing Pty Limited (Administrators Appointed) [1] OneSteel Manufacturing Pty Limited (Administrators Appointed) (OSM) has made an application pursuant to s.319(1)(b) of the Fair Work Act 2009 (Act) for an order that the Whyalla Mining Agreement 20231 (2023 Agreement) covers OSM and any non-transferring employees who perform work for it in one of the classifications covered by the Agreement. [2] The 2023 Agreement was approved by the Commission on 12 January 2024 and has a nominal expiry date of 8 July 2027. The Australian Workers’ Union (AWU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and CFMEU are employee organisations covered by the 2023 Agreement. [3] The background2 to the application is that the 2023 Agreement covers and applies to Golding Contractors Pty Ltd (Golding) and its relevant employees who undertake extraction and related maintenance work activities at mine sites in the South Middleback Ranges and Iron Duke mines in South Australia (mine sites). These mine sites are operated by OSM. As part of the reorganisation of its steelmaking and mining activities, OSM has determined to, in effect, insource the mining extraction activities presently undertaken by Golding. This will involve the Golding employees who are engaged in the mining extraction and ore movement activities (transferring employees) becoming direct employees of OSM. The Golding employees who perform the maintenance work will continue to be employed by Golding. [4] I observe that there are (other) existing employees of OSM who perform processing, treatment and control of the materials presently extracted by Golding, and tradespersons/servicepersons involved with the processing plant equipment. The work of these employees is covered by another enterprise agreement3 and is distinct from that undertaken by Golding. [5] I also observe that the 2023 Agreement will also continue to cover and apply to Golding and its employees who are not transferring to OSM. [2026] FWC 2084 DECISION [2026] FWC 2084 2 [6] On 1 July 2026, the employment of around 150 transferring employees will revert to OSM. For reasons I will explain, the 2023 Agreement will also transfer to OSM and it will cover and apply to it and the transferring employees. [7] OSM will be required to employ new employees from time to time after 1 July 2026. This application seeks that the 2023 Agreement also apply to the non-transferring employees, that is, any new employees. [8] The application was subject to a video hearing on 9 June 2026. In the lead up to the hearing, I directed that a copy of the application and certain directions that had been issued by the Commission be made available to each of the three unions who represent the existing employees. [9] The AWU, AMWU and CFMEU either consent to, or do oppose, the application. [10] At the conclusion of the hearing, I advised that the application would be granted and the Order made in the terms canvassed with the parties during the hearing. My reasons for doing so are briefly set out below. 2. The transfer of business [11] Section 311 of the Act sets out the circumstances in which a transfer of business occurs. It states: “311 When does a transfer of business occur 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).” [12] The insourcing of work provides a relevant connection for the purposes of s.311 of the Act.4 [13] Section 312 of the Act also indicates that a “transferable instrument” includes “an enterprise agreement that has been approved by the FWC”. [2026] FWC 2084 3 [14] 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”. [15] I am satisfied that there will be a transfer of business and that the relevant employees of Golding will transfer to OSM on 1 July 2026 under the terms of the Act. I am also satisfied that the 2023 Agreement is a transferable instrument and will cover OSM and the transferring employees. [16] Section 314 of the Act also provides for a transferable instrument to cover other employees in certain circumstances. It states: “314 New non-transferring employees of new employer may be covered by transferable instrument (1) If: (a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and (b) after the transferable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and (c) the non-transferring employee performs the transferring work; and (d) at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non-transferring employee in relation to that work; then the transferable instrument covers the new employer and the non- transferring employee in relation to that work. (2) A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee. (3) This section has effect subject to any FWC order under subsection 319(1).” [17] In this case, the Mining Industry Award 2020 (mining award) would cover the non- transferring employees, and this prevents the 2023 Agreement (automatically) applying to the non-transferring employees. [2026] FWC 2084 4 [18] As indicated above, the provisions contained in s.314 are subject to s.319 of the Act, which permits the Commission to make an Order that a transferring instrument covers non- transferring employees. This is the intended effect of the present application. 3. Consideration of the s.319 application [19] Section 319 of the Act states: “Orders that the FWC may make (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 non-transferring employee because of subsection 314(1) does not, or will not, cover the non-transferring employee; (b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer; (c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer. Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer. Who may apply for an order (2) The 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 non-transferring employee who performs, or is likely to perform, the transferring work for the new employer; (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). [2026] FWC 2084 5 Matters that the FWC must take into account (3) In deciding whether to make the order, the FWC must take into account the following: (a) the views of: (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; (g) the public interest. Restriction on when order may come into operation (4) The order must not come into operation in relation to a particular non-transferring employee before the later of the following: (a) the time when the non-transferring employee starts to perform the transferring work for the new employer; (b) the day on which the order is made.” [20] OSM is entitled to bring the application, which relies upon the terms of s.319(1)(b) of the Act to, in effect, extend the coverage of the 2023 Agreement to the non-transferring employees. [21] In dealing with the application, the Commission is required to have regard to each of the matters in s.319(3) in determining whether an Order should be made. I now turn to deal with each of those considerations. The views of the new employer – s.319(3)(a)(i) [2026] FWC 2084 6 [22] OSM as the applicant and the new employer supports the application and the Order that it proposes should be made. The views of the new employees – s.319(3)(a)(ii) [23] There are no new employees at the time of the application. Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment – s.319(3)(b) [24] 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. This is also consistent with the fact that the 2023 Agreement was relatively recently found by the Commission to meet all of the approval requirements of the Act, including in effect, that the employees would be better off overall with the approval of the 2023 Agreement than remaining under the terms of the mining award.5 Nominal expiry date of the agreement – s.319(3)(c) [25] The nominal expiry date of the 2023 Agreement is 8 July 2027. This indicates that the instrument is both relatively contemporary and has a reasonable nominal life ahead. Negative impact on Productivity – s.319(3)(d) [26] I am satisfied that there will be no negative impact on productivity if the Order is made. In contrast, if the Order is not made and transferring and non-transferring employees are on different terms and conditions of employment, this may have a negative impact on employee cohesion and in turn upon workplace productivity. Economic disadvantage for the new employer – s.319(3)(e) [27] The 2023 Agreement’s coverage of non-transferring employees will not cause any significant economic disadvantage to OSM. It provides more beneficial terms and conditions than the modern award, however, it will already apply to all of the transferring workforce. Further, if the Order is not made, it will be required to maintain two different payroll systems and potentially different rostering arrangements, and this would be an economic disadvantage. Degree of business synergy between the Agreement and any workplace instrument that already covers the new employer – s.319(3)(f) [28] “Business synergy” may have wide connotations in the present context. This would include a consideration of the differences between the Agreement and, in this case, the mining award, with a view to how consistent they are with the business activities and operations of OSM. There are differences between the terms and conditions of the Agreement and the modern award. It is likely that OSM could conduct its business under either. However, given the circumstances of this matter, this consideration does not suggest that the Order not be made. That is, the existing practical impact of that aspect is limited. Further, if the Order is granted it will confirm a single framework of regulation that has been negotiated and approved by the Commission in the same general context in which it has applied and will continue to apply. [2026] FWC 2084 7 Public interest – s.319(3)(g) [29] 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. [30] The granting of the application is consistent with those objects. 4. Conclusions and orders [31] Having considered each of the matters in s.319(3) of the Act I am satisfied that it is appropriate for an Order to be made. [32] In accordance with s.319(4) of the Act, the Order will not come into operation in relation to each non-transferring employee until the later of the following: • the time when the non-transferring employee starts to perform the transferring work for the new employer; or • the day on which the order is made. [33] The Order6 is issued in conjunction with this decision. DEPUTY PRESIDENT [2026] FWC 2084 8 Appearances: J. Parnis of EMA Legal (with permission), with V. Hinton for OneSteel Manufacturing Pty Limited (Administrators Appointed). S. Karger for The Australian Workers’ Union. S. McMillan for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). T. Hera-Singh for the CFMEU. Hearing details: Adelaide. Online via Microsoft Teams Video. 2026. 9 June. Printed by authority of the Commonwealth Government Printer <PR810725> 1 AE523109. 2 Facts drawn for the Affidavit of Vicki Hinton, Employee Relations Manager. 3 OSM Middleback Ranges Enterprise Agreement 2025. 4 Section 311(4) or (5) of the Act. 5 Section 193 of the Act. 6 PR810791.