s.318 - Application for an order relating to instruments covering new employer and transferring employees

Application for orders relating to transferable instrument.

[1] By way of background, on 1 January 2026, it is proposed that Alfred Health will merge with four other Victorian public health sector organisations under section 13 of the Health Services Act 1988 (Vic). These are: Peninsula Health; Bass Coast Health; Kooweerup Regional Health Service; and Gippsland Southern Health Service, and its successor organisation. Collectively these public health sector organisations will be known as Bayside Health and it is proposed that all current Alfred Health employees will transition to Bayside Health. Any employees engaged on or after 1 January 2026 will be engaged by Bayside Health directly.

[2] As this application has been submitted prior to the commencement of the transition to Bayside Health on 1 January 2026, reference to the Employer in this Decision is referred to as Alfred Health.

[3] This application specifically relates to employees engaged to provide pathology services to the Western Health public health care service. Healius Pathology (trading as Dorevitch) currently provides pathology services to Western Health. Western Health is a Victorian public sector health care service which operates Footscray Hospital, Sunshine Hospital, Williamstown Hospital, Bacchus Marsh Hospital, and Sunbury Community Hospital. Alfred Health operates the Alfred Pathology Service and will become the pathology service provider to Western Health on, or around, 11 February 2026.

[4] In June 2025, Alfred Health entered into a Memorandum of Understanding with Dorevitch to facilitate changeover of services from Dorevitch to Alfred Health including the transfer of certain Dorevitch employees to Alfred Health. The employees affected by this application are expected to transfer employment on 11 February 2026 to Alfred Health.

[5] The proposed Transferring Employees are currently covered by two Enterprise Agreements (collectively referred to as the 'Dorevitch Agreements'):

Healius Pathology Ltd T/A Dorevitch Pathology Scientists and Technician Employees Enterprise Agreement 2023-2027 (the Dorevitch Pathology Scientists and Technician Employees Agreement);[1] and

Healius Pathology Ltd T/A Dorevitch Pathology Support Employees Enterprise Agreement 2021 (the Dorevitch Pathology Support Employees Agreement_)_.[2]

[6] As part of the application, rather than the Dorevitch Agreements outlined above continuing to apply to transferring employees, Alfred Health seeks an order that the following Enterprise Agreements will instead apply to the Transferring Employees working in its pathology service (collectively known as the 'Victorian Public Health Sector Agreements'):

Medical Scientists, Pharmacists and Psychologists Victorian Public Sector (Single Interest Employers) Enterprise Agreement 2021-2025 (the Alfred Health Scientists Agreement);[3]

Health & Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021 - 2025 (the Alfred Health HAMA Agreement);[4] and

Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026 (the Alfred Health AHP Agreement).[5]

[7] Of the 107 employees affected by this transition and merger, it is proposed that:

• 52 transferring employees will be covered by the Alfred Health Scientists agreement;
• 54 transferring employees will be covered by the Alfred Health HAMA agreement; and
• 1 transferring employee will be covered by the Alfred Health AHP agreement.

[8] Section 318 of the Fair Work Act 2009 (Cth) ('the Act') sets out the circumstances in which an Order may be made by the Commission, s.318 provides as follows:

"318 Orders relating to instruments covering new employer and transferring employees

(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.

(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 transferring employee, or an employee who is likely to be a transferring employee;

(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).

(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;

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

[9] It is not in dispute that the Commission has jurisdiction to make the order sought as there is likely to be a transfer of business from an old employer to a new employer in accordance with s.317 of the Act and within the meaning of Part 2-8 of the Act.

[10] On the material before me, I am satisfied there will be a transfer of business from Dorevitch (the old employer) to Alfred Health (the new employer) within the meaning of s.311(1) of the Act. This is because:

• under the Memorandum of Understanding, the employment of the Transferring Employees will terminate from Dorevitch;

• Alfred Health has made employment offers (most of which have been accepted by the Transferring Employees). The Transferring Employees will become employees of Alfred Health the day after they terminate from Dorevitch;

• the work that the Transferring Employees will perform for Alfred Health is the same as the work they performed for Dorevitch, for example, medical scientist, laboratory technician and specimen collection work;

• there is a "connection" between Dorevitch and Alfred Health as described by s311(4) because Alfred Health will have the beneficial use of assets currently held by Dorevitch; and

• the 'Dorevitch Agreements' are Enterprise Agreements previously approved by the Commission in satisfaction of s.312 of the Act.

[11] I will now turn to consider each of the matters set out in s.318(3) of the Act that the Commission must have regard to in determining of orders should be granted.

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

[12] Alfred Health has made offers of employment to the 107 employees who stand to be affected by the order with 102 of those employees currently having accepted those offers of employment. Alfred Health submits that it seeks to enhance working conditions and satisfaction rates of its employees, as well as investing in its own stability and success. This is evident through:

• the Victorian Public Health Sector Agreements providing more favourable conditions and entitlements in nearly all key areas in comparison to the Dorevitch Agreements leading to greater morale, workplace stability and service continuity across pathology sites;
• greater administrative ease, reduction of complexity, and mitigation of legal and compliance risks via integration of a single Enterprise Agreement framework; and
• promotion of greater unified culture and cohesion with alignment of service and delivery performance objectives where transferring employees would stand to be fully integrated to Alfred Health Pathology services.

[13] As part of its consultation process, Alfred Health surveyed anonymously the transferring employee's views about the proposal to apply the Victorian Public Health Agreements to their employment. The results from those surveys indicated that all 50 surveyed to be covered by the Alfred Health Scientists Agreement and all 49 staff surveyed to be covered by the Alfred Health HAMA Agreement were agreeable to be covered. No response was received in relation coverage of the Alfred Health AHP Agreement.

[14] Alfred Health also consulted with the Medical Scientists Association of Victoria (MSAV) and the Health Workers Union (HWU) about the proposed application. Both MSAV and HWU have indicated their support of the Application. Alfred Health did not consult with the Australian Nursing and Midwifery Federation (ANMF) as no nursing roles will transfer to Alfred Health. Regardless, the ANMF have indicated that they also do not oppose the application.

[15] I am satisfied that the views of the new employer and of the Transferring Employees indicate agreement to transfer employment from Dorevitch to Alfred Health and to transfer the Dorevitch Agreements to the Victorian Public Health Sector Agreements. I am satisfied that the correspondence was clear, unambiguous and reliable. I am satisfied that both the new employer and the 107 Transferring Employees support this application and effect of the Order.

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

[16] Alfred Health submits that overall, the Transferring Employees will not be disadvantaged by the order sought. Alfred Health conducted a clause-by-clause comparison between the Transferrable Instruments against the Victorian Public Health Sector Agreements. Alfred Health submits that while certain allowances are lower or structured differently in the Victorian Public Health Sector Agreements, wage modelling demonstrates that the total package of entitlements results in no disadvantage to the Transferring Employees and in most instances, places the Transferring Employees in a more advantageous position.

[17] Alfred Health further submits that continuous monitoring will be conducted to ensure that the Victorian Public Health Sector Agreements operate as intended without disadvantaging Transferring Employees and that it is committed to working with employees in the Alfread Health Pathology Service, MSAV, HSU, and VAHPA to identify and resolve any issues that may arise.

[18] I am satisfied that the Transferring Employees will not be disadvantaged by the Order.

Section 318(3)(c) -the nominal expiry date of the agreement

[19] The Victorian Public Health Sector Agreements have the following nominal expiry dates:

• Alfred Health Scientists Agreement: 30 November 2025.
• Alfred Health HAMA Agreement: 30 June 2025.
• Alfred Health AHP Agreement: 28 February 2026.

[20] The Dorevitch Agreements have the following nominal expiry dates:

• Dorevitch Pathology Scientists and Technician Employees Agreement: 1 April 2027.
• Dorevitch Pathology Support Employees Agreement: 1 July 2025.

[21] Alfred Health submits that each of the Victorian Public Health Sector Agreements are currently being renegotiated. It is expected that the Victorian Public Health Sector Agreements negotiations will result in higher and more favourable wage differences in comparison to the Dorevitch Agreements.

[22] I accept the Applicant's submissions and this weighs in favour of granting the orders sought.

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

[23] I accept Alfred Health's submissions that employees performing identical roles in the same team under different enterprise agreements with different terms and conditions raises concerns about the potential negative impact on productivity within Alfred Health. The existence of employees in similar roles governed by different agreements, with varying terms and conditions may pose a risk to workplace harmony and productivity for Alfred Health. Alferd Health's approach seeks to harmonise and bring greater clarity to mitigate the potential negative impacts on productivity.

[24] These negative impacts are reasonable concerns for Alfred Health to hold and weighs in favour of granting of the orders sought.

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

[25] Alfred Health submits that should the Dorevitch Agreements continue to apply to the Transferring Employees it would result in a costly exercise to configure existing human resource payroll systems with it being estimated to cost between $75,000 and $100,000. Considering Alfred Health is engaging in a merger, it submits that it lacks the resources to support implementation of the Dorevitch Agreements. Integration of the Victorian Public Health Sector Agreements would result in greater harmonisation with existing infrastructures leading to a more seamless integration to Transferring Employees leading to greater certainty and clarity.

[26] I accept these submissions from the Applicant.

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

[27] Alfred Health submits and acknowledges that there is not complete synergy between the Dorevitch Agreements and the Victorian Public Health Sector Agreements. There are several provisions which differ in terms of wage rates, allowances, and other terms and conditions of employment. Alfred Health's position is that business synergy would be achieved by having all employees on the same, or substantially the same, terms and conditions.

[28] I accept Alfred Health's submissions that having the Transferring Employees performing identical roles under markedly different conditions would lead to an unreasonable level of inconsistency. This weighs in favour of the orders sought being granted.

[29] Alfred Health submits that it is in the public interest to grant the order sought. It is reasonable and within the public's interest that employees of the public service in the health sector performing identical roles would operate under consistent terms and conditions. The application of multiple instruments would result in inequity and reduced morale, administration duplication and greater error of risk, recruitment and retention challenges, unnecessary costs to the public health system, and operational fragmentation affecting patient care.

[30] I accept these submissions. Operating under a unified industrial framework would result in greater and stable pathology services across Alfred Health and Western Health with greater public confidence and a more satisfied workforce.

[31] I have considered the application and accompanying material provided by the Applicant in support of its application and the matters set out in s.318(3) of the Act. I am satisfied the materials provided by the Applicant, when considered against the matters set out in s.318(3) of the Act support the making of the order. The support by the Transferring Employees, MSAV, and the HWU are relevant to my consideration of this Application.

[32] The Order to give effect to this decision will be that the transferrable instruments that covers, or is likely to cover, the new employer (Alfred Health) because of paragraph 313(1), does not, or will not, cover the new employer and the transferring employees.

[33] The date expected for the transfer of employees to Alfred Health is 11 February 2026. The following Dorevitch Agreements will not apply when the Transferring Employees transfer employment:

Healius Pathology Ltd T/A Dorevitch Pathology Scientists and Technician Employees Enterprise Agreement 2023-2027 (the Dorevitch Pathology Scientists and Technician Employees Agreement);[6] and

Healius Pathology Ltd T/A Dorevitch Pathology Support Employees Enterprise Agreement 2021 (the Dorevitch Pathology Support Employees Agreement_)_.[7]

[34] The Victorian Public Health Sector Agreements that will apply to the Transferring Employees are:

Medical Scientists, Pharmacists and Psychologists Victorian Public Sector (Single Interest Employers) Enterprise Agreement 2021-2025 (the Alfred Health Scientists Agreement);[8]

Health & Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021 - 2025 (the Alfred Health HAMA Agreement);[9] and

Allied Health Professionals (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2026 (the Alfred Health AHP Agreement).[10]

[35] I am satisfied that the requirements of s.318 of the Act have been met and an Order giving effect to this decision is issued separately in PR795903.

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