s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

AG SECURITY GROUP EMPLOYEE COLLECTIVE AGREEMENT 2024

Application for an order relating to instruments covering new employer and non-transferring employees - application granted

• [1] On 29 July 2025, AG Security Guards and Patrols Pty Ltd (the Applicant) filed an application in the Fair Work Commission (the Commission) for an order under section 319 of the Fair Work Act 2009 (the Act).

• [2] The Applicant says that a transfer of business occurred on 1 July 2025 between Prodelv Pty Ltd, the Trustee for the O'Connell Family Trust trading as AG Security Group, (AG Security Group) and the Applicant. The Applicant is a subsidiary of AG Security Group.

• [3] The Applicant submitted that the AG Security Group Employee Collective Agreement 2024 (the Agreement) was a transferrable instrument that transferred from AG Security Group to the Applicant, covering the Applicant and the transferring employees who were employed by AG Security Group just prior to the transfer and who were subsequently employed by the Applicant.

• [4] The Applicant sought an order from the Commission that, pursuant to section 319 of the Act, any non-transferring employees, being employees employed after the transfer of business, who perform work for the Applicant in one of the classifications covered by the Agreement, also be covered by the Agreement.

• [5] The Agreement was approved on 6 March 2024 and has a nominal expiry date of 31 January 2027. In the absence of an order in the form sought, the non-transferring employees would be covered by the Security Services Industry Award 2020.

• [6] AG Security Group underwent a corporate restructure, in which two of its operational divisions became separate and distinct legal entities. The Guards and Patrols Division, and the Projects and Service Division, now respectively operate as the entities AG Security Guards and Patrols Pty Ltd and AG Projects and Service Pty Ltd. Both of these entities sit within the AG Security Group Holdings Pty Ltd parent company, which is in turn operated by the O'Connell Family Trust.

• [7] As of 1 July 2025, the Applicant is the employing entity and will need to employ new employees from time to time. This application seeks that the Agreement apply to non-transferring employees, being any new employees engaged by the new employer after the transfer date.

• [8] An application was previously made under section 319 of the Act in respect of the Projects and Services Division. This application was determined in a decision of the Commission on 15 July 2025[1] and an Order was made[2] that the Agreement cover any non-transferring employees.

• [9] On 11 August 2025, I issued directions that the application, any material relied on by the Applicant and the directions themselves be provided to existing employees and the United Workers Union, as a union covered by the Agreement.[3] The directions invited any of the employees, and the United Workers' Union, to make direct submissions to the Commission and/or express any concerns with the application if they wished to. No concerns or comments have been raised with the Commission.

• [10] The matter was listed for a video hearing on 26 August 2025. At the conclusion of the hearing, I advised that the application would be granted and the Orders made as sought. My reasons for granting the Orders are set out below.

• [11] Section 311(1) of the Act defines when a transfer of business occurs and includes circumstances in which the employment of an employee of the old employer has terminated, the employee has become employed by the new employer within three months of the termination, the work the employee performs for the new employer is the same or substantially the same as the work performed for the old employer and there is a connection between the old and new employer as described in subsections 311(3) - (6) of the Act.

• [12] In this case, section 311(6) provides the connection between the old and new employers, as the new employer is a subsidiary of the old employer and therefore an associated entity of the old employer.

• [13] Section 312 of the Act defines the instruments that may transfer from one employer to another and sets out that a 'transferrable instrument' includes an 'enterprise agreement that has been approved by the FWC.' The Agreement in this matter falls within the definition of a transferrable instrument.

• [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] Section 317 of the Act allows the Commission to make certain orders in the event of a transfer of business from an old employer to a new employer.

• [16] Section 319(1)(b), the subject of this application, relates to non-transferring employees, being employees employed by the Applicant after the transfer of business. Section 319(1)(b) provides:

319 Orders relating to instruments covering new employer and non‑transferring employees

(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.

• [17] Section 319(2)(a) allows the Commission to make the order on application by the new employer.

• [18] Section 319(3) of the Act sets out matters that the FWC must take into account in deciding whether to make an order pursuant to section 319(1)(b):

(3) In deciding whether to make the order, the FWC must take into account the following:

(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;

• [19] I am satisfied that a transfer of business has occurred as defined by section 311(1) of the Act and that the Agreement is a 'transferable instrument' as defined by section 312. I am also satisfied that pursuant to section 313(1)(a) of the Act, the Agreement covers the Applicant and the transferring employees in relation to the transferring work.

• [20] AG Security Guards and Patrols Pty Ltd is the 'new employer' for purposes of section 319(2)(a) of the Act and is able to bring this application.

• [21] In dealing with applications under s.319 of the Act, 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)

• [22] The new employer brought the application and seeks the orders be made. Ms Bezzina, General Manager, representing the new employer, submitted that the Applicant seeks the order for reasons including administrative efficiency. Ms Bezzina submitted that it will assist in the efficient operations of the business if all employees of the new employer are subject to the same pay and conditions and are not managed across two industrial instruments, being the Agreement and the Award.

The views of the new employees - s.319(3)(a)(ii)

• [23] Views were sought from transferring and non-transferring employees and the employee organisation covered by the Agreement. No submissions were provided to the Commission and no contact was made by the employees or the United Workers' Union.

Whether any employees would be disadvantaged by the orders 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 consistent with the fact the Agreement was recently approved by the Commission and found to meet the approval requirements of the Act, including that the employees would be better off overall being covered by the Agreement than remaining under the terms of the Security Services Industry Award 2020.

Expiry date of the agreement - s.319(3)(c)

• [25] The nominal expiry date of the Agreement is 31 January 2027. The Agreement is relatively contemporary and there is a reasonable period of time before it reaches its nominal expiry date.

Negative impact on Productivity - s.319(3)(d)

• [26] I am satisfied there will be no negative impacts on productivity. If the order were not made, the employees engaged by the Applicant would be covered by different instruments with different conditions which could lead to industrial disharmony amongst employees with a resulting impact on productivity.

• [27] The Applicant submitted that refusing to make the order would necessitate the creation of "separate employment instruments and management systems, which would lead to operational inefficiencies. Allowing the transferrable instrument to apply promotes streamlined operations, consistent expectations and enhances productivity." I accept these submissions of the Applicant.

Economic disadvantage for the new employer - s.319(3)(e)

• [28] The Agreement's coverage of non-transferring employees will not cause economic disadvantage to the Applicant. The Agreement provides more beneficial conditions than the Security Services Industry Award 2020, however, the Applicant submitted that having to comply with two different industrial instruments relevant to its workforce would lead to increased administrative costs. The Applicant said in its application: "The application of the transferable instrument to new employees does not impose an economic burden on the new employer. The terms of the agreement are sustainable and factored into workforce planning."

Degree of business synergy between the Agreement and the Security Services Industry Award - s.319(3)(f)

• [29] The business synergy to be considered is likely to encompass the differences between the Agreement and the Security Services Industry Award 2020, and their respective applications to the business activities of the Applicant and the work performed by the employees.

• [30] The Applicant employer could likely undertake their activities if their employees' conditions were set by either the Agreement or the Award. However, this does not suggest the order should not be made.

• [31] It is important that if the order is granted it will give the Applicant and its employees one system of industrial regulation, recently negotiated between the parties in a similar industrial context in which it will continue to apply with the new employer. Therefore, for business synergy, it would be more beneficial for the Agreement to apply to all employees, including non-transferring employees.

Public interest - s.319(3)(g)

• [32] The public interest considerations in this context are influenced by the objects of this Part of the Act contained in section 309 and those adopted by the Act more broadly.

• [33] In particular, I note that the granting of this application is consistent with the objects in section 309 to balance the protection of employees' terms and conditions of employment under industrial instruments and the interests of the employer in running their enterprise efficiently.

• [34] I have considered the relevant matters as required by section 319(3) of the Act and I am satisfied that it is appropriate for the Order to be made as sought by the Applicant.

• [35] In accordance with section 319(4) of the Act, the Order will come into operation in relation to each non-transferring employee from the later date of the following:

• the time when the non-transferring employee starts to perform the transferring work for AG Security Guards and Patrols Pty Ltd; or

• [36] The Order[4] is issued in conjunction with this decision.

[1] [2025] FWC 1948.

[2] PR789005.

[3] See [2024] FWCA 843.

[4] PR791159.

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