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

Australia and New Zealand Banking Group Limited T/A ANZ

Application by Australia and New Zealand Banking Group Limited T/A ANZ for an order relating to instruments covering new employer and transferring employees.

• [1] An Application has been made by Australia and New Zealand Banking Group Limited T/A ANZ (ANZ) to the Fair Work Commission for an order pursuant to s 318 of the Fair Work Act 2009 (the Act) seeking that the Suncorp Group Enterprise Agreement 2015 (the 2015 Suncorp Agreement) not apply to ANZ in respect of particular transferring employees.
• [2] The transferring employees are employees transferring from an entity called Norfina Limited to ANZ, employed by ANZ to perform transferring work for ANZ (being work that is the same, or substantially the same, as the work performed by transferring employees under the 2015 Suncorp Agreement prior to the employees being employed by ANZ) and who, immediately before the transfer, were classified in Fixed Salary Pay Bands 7 or 8 under the 2015 Suncorp Agreement. They are known as Suncorp Bank Business Leaders.
• [3] The Application was filed on 29 August 2025 and sets out the grounds upon which it is based comprehensively, with supporting documentation.
• [4] The 2015 Suncorp Agreement covers the Finance Sector Union of Australia (FSU) and the Australian Municipal, Administrative Clerical and Services Union (ASU).
• [5] The application was initially allocated to Millhouse DP. On 4 September 2025, the Deputy President made Directions requiring ANZ to serve upon the transferring employees and the FSU and ASU (the Unions) a copy of the Application and advice as to how they could go about making a submission to the Commission about it. A copy of the Directions was also required to be served which provided that if any of the Unions or the transferring employees sought to file submissions or other materials in relation to the Application, they were to do so by 19 September 2025.
• [6] A Statement was filed in the Commission by ANZ on 9 September 2025 made by Ms Jessica Main who is a Senior Lawyer in the ANZ Employment Legal Team. The Statement confirms that service upon the Unions and the transferring employees of the material required by the Deputy President's directions occurred on 5 September 2025 and evidence was provided of same.
• [7] There was no correspondence received by the Commission from either the Unions or the transferring employees by the Deputy President's due date, nor has there been since. As is mentioned below, ANZ has provided material indicating that 66 of the 68 employees concerned have expressed their support for the Order sought by the application.

• [8] In short, the Application concerns the acquisition by ANZ of Norfina Limited (Norfina) from Suncorp Group Limited on 31 July 2024. On completion of this transaction, Norfina became a wholly owned subsidiary of ANZ, and relevant Suncorp Group employees transferred employment to Norfina.
• [9] The 2015 Suncorp Agreement applies to Norfina and the former Suncorp Group employees in roles that fall within its classification structure. This includes the Suncorp Bank Business Leaders who are senior employees in Fixed Salary Pay Bands 7 and 8.
• [10] On 9 August 2024, the Commission made orders with the effect that the 2015 Suncorp Agreement (rather than the Banking, Finance and Insurance Award 2020) also covers new non-transferring employees employed by Norfina Limited to perform the same or substantially the same work as the transferring employees.
• [11] Between 4 August and 21 August 2025, ANZ issued the Suncorp Bank Business Leaders (the transferring employees) with offers to commence employment with it on 31 October 2025. Each of the Suncorp Bank Business Leaders who received an offer of employment accepted the offer with ANZ. They will commence employment on 31 October 2025
• [12] A new agreement - the Suncorp Bank Enterprise Agreement 2025 (2025 Suncorp EA) was approved by the Commission on 14 October 2025 and will commence operation on 21 October 2025. The 2025 Suncorp EA replaces the 2015 Suncorp EA for all Suncorp Bank employees other than the Suncorp Bank Business Leaders. Consequently, from 21 October 2025, the 2015 Suncorp EA will only apply to the Suncorp Bank Business Leaders.

• [13] Section 318 of the Act 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;

• [14] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, as set out in the Form F40 Application, all of the elements of s 311(1) of the Act have been met and therefore, a transfer of business has occurred within the meaning of the Act.
• [15] Section 312 of the Act details instruments that may transfer:

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(2) Each of the following is a named employer award:

(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

• [16] The 2015 Suncorp Agreement was approved by the Commission on 4 December 2014 and pursuant to s 312(1) of the Act is a transferrable instrument.

• [17] The application has been made by ANZ, the new employer. The requirement under s 318(2) has therefore been met.

Section 318(3) - Matters that the FWC must take into account

• [18] The grounds relied on by ANZ which are set out in the application are outlined below.

Section 318(3)(a)(i) - the views of the new employer

• [19] ANZ supports the Orders sought by the Application. It wants the transferring employees to be covered by its individual employment framework when they commence employment. This would mean their employment arrangements are aligned to their peers employed by ANZ, are appropriate for senior managers and are consistent with the industry standard across large corporate organisations across the banking sector and more broadly. If the Application is not granted, the proper integration of the transferring employees into the ANZ workforce would be impeded and there would be a disparity created between them and others who would, on an overall basis, be employed on superior terms and conditions of employment.
• [20] I have taken into account the views of the new employer - ANZ - including the effect of not granting the application. In the circumstances, this matter weighs in favour of making the order sought.

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

• [21] In support of the Application, ANZ explained that it has delivered several live in person briefings to the transferring employees and provided them with documentary information about the proposal to engage them under the individual employment framework rather than the 2105 Suncorp Agreement (or a replacement Agreement). They were invited to express their views about the proposition and ANZ provided with the Application responses received showing 66 from 68 employees concerned support it. The Commission has not received any communication from the transferring employees. I note that all of the employees concerned have accepted employment with ANZ.
• [22] I am satisfied that steps have been taken to explain the effect of the Order sought by the application to the transferring employees, and that they have been afforded proper opportunities to express their views. There appears to be overwhelming support. This weighs in favour of granting the Orders sought.

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

• [23] ANZ submits that each offer of employment made to the transferring employees is on terms which are overall no less favourable than the terms and conditions of employment provided under the 2015 Suncorp EA.
• [24] ANZ also submitted that it accepts and has communicated to each transferring employee that if the Orders sought by the application are granted, they will earn a salary above the high income threshold and will not be eligible to make an unfair dismissal application under Part 3-2 of the Act. It further submits that it maintains a comprehensive suite of processes and frameworks supported by a specialised Employee Relations function, to ensure termination of employment is managed lawfully and fairly. The employees were also informed that no longer being covered by an enterprise agreement would impact access to mechanisms for raising concerns during employment (such as dispute resolution processes) ANZ submits however that employees have a range of other channels for raising and resolving any concerns.
• [25] ANZ submits this factor should be treated as neutral and I accept this submission.

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

• [26] The 2015 Suncorp Agreement's nominal expiry date was 27 November 2018 - some six years ago, and more than ten years has passed since it was made. ANZ submits that this factor weighs in favour of the proposed orders being granted, on the basis that the 2015 Suncorp Agreement does not contain contemporary terms and is not suited to current employment circumstances of its business. I accept this submission.

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

• [27] ANZ submits that the making of the proposed Orders would have a positive impact on the it's productivity by streamlining and simplifying employment arrangements across its integrated senior management cohort. It further submits that conversely, there would be a negative impact on the productivity of its workforce if the proposed orders are not granted, as a result of it being required to administer terms and conditions underpinned by several different employment frameworks, creating inefficiencies and unnecessary complexities in the maintenance and administration of systems and processes that will, in turn, hinder productivity
• [28] I accept these submissions and consider this matter weighs in favour of making the Order sought.

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

• [29] ANZ submits that costs associated with establishing and maintaining separate systems and processes, which would result from having some senior managers' employment covered by an enterprise agreement, and others by the individual employment framework, would result in economic disadvantage. I accept this submission and consider this to weigh further in favour of making the Orders sought.

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

• [30] There is a lack of business synergy between the 2105 and the other employment arrangements that ANZ uses in relation to the cohort of employees relevant to this Application. This weighs further in support of the Application.

• [31] Section 318(3)(g) of the Act requires the Commission to consider the public interest. The notion of public interest is informed by the objects of Part 2-8 as set out in s 309 of the Act, and the objects of the Act more generally[1]. This entails a concern for the protection of transferring employees' conditions of employment and the importance of an employer being able to run its enterprise efficiently[2].
• [32] ANZ submits that it would be in the public interest to make the orders sought by the Application because doing so will support it to achieve its integration objectives and better serve its customers and communities. It further submits that the Orders strike an appropriate balance between the protection of employees' terms and conditions with the operational needs of their employer and are consistent with the objectives of the transfer of business provisions under the Act.
• [33] I accept these submissions. However, this does not carry any particular weight in circumstances where the considerations in this decision have not been the subject of dispute between the parties. Accordingly, I regard this factor to be a neutral consideration.

• [34] Having given regard to each of the matters set out in s 318(3) of the Act, I am satisfied an Order[3] should issue that the 2015 Suncorp Agreement - which is a transferrable instrument that would, or would be likely to, cover the transferring employees - does not, or will not, cover those employees.
• [35] For the purposes of s 318(4) of the Act, the order[4] will come into operation in respect of the relevant employees on the date that they commence employment with ANZ or the date of the order, whichever is the later.

[1] Fair Work Act 2009 s 3

[2] AustralianSuper Pty Ltd [2024] FWC 734 [23]

[3] PR792959

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