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

Australian Unity Group Services Pty Ltd T/A Australian Unity

Application for orders relating to transferable instrument

• [1] An Application has been made by Australian Unity Group Services Pty Ltd (Australian Unity) to the Fair Work Commission for an order pursuant to s 318 of the Fair Work Act 2009 (the Act) seeking that the PresCare Support Staff Enterprise Agreement 2011 (the PresCare Agreement) not apply to Australian Unity in respect of particular transferring employees who will transfer their employment to Australian Unity, and further, that the several Australian Unity enterprise agreements or a relevant Modern Award cover any such transferring employees.
• [2] The Application was filed on 4 September 2025. On 12 September 2025 Australian Unity filed two witness statements - one from Mr Gow, its Executive General Manager, Customer - Home Care, and the other from Ms Stella, its Workplace Relations Practice Lead, and relies on these and its other materials in support of the Application.
• [3] The PresCare Agreement covers the The Australian Workers' Union of Employees, Queensland (AWU) and the "United Voice" (now known as United Workers' Union (UWU)).
• [4] On 11 September 2025, I made Directions in this matter requiring Australian Unity to serve upon the transferring employees and the AWU and UWU (the Unions) a copy of the Application, and a copy of an attachment to the Application outlining its grounds. It was also to serve upon the Unions and the transferring employees a copy of any statutory declaration or witness statement filed. A copy of my 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 26 September 2025.
• [5] On 12 September 2025, my chambers was copied into correspondence sent by Australian Unity to the Unions and to the transferring employees containing the information I directed to be served. The email sent to the transferring employees also stepped out how they could make submissions to the Commission about the Application should they wish to do so.
• [6] On 26 September 2025 the AWU advised that having considered the materials filed by Australian Unity, it does not object to the orders sought.
• [7] Nothing was received by any of the transferring employees or the UWU.

• [8] In short, the Application concerns a series of transactions through which Australian Unity acquired a health care provider called Enrich Health Group Pty Ltd (Enrich) whose subsidiary, MHC Employment Services Pty Ltd (MHC) had itself previously acquired an in-home care service division of PresCare. The PresCare Support Staff Agreement 2011 which had covered some of its employees, covered those employees when they began working for MHC as a transferring instrument. It is proposed that following Australian Unity's acquisition of Enrich, some if its employees will transfer to become employees of Australian Unity in October or November 2025.
• [9] When the employees are transferred, Australian Unity wants:
  1. An agreement called the Australian Unity Home Care Enterprise Agreement 2017 to apply to 22 employees who are home care workers.
  2. An agreement called the Australian Unity Home Care Administration Enterprise Agreement 2022 to apply to 4 employees who are administrators associated with the delivery of home care services (scheduling coordinators or care managers).

I will refer to these agreements together as the Australian Unity Agreements.

1. The Health Professionals and Support Services Award 2020 to apply to one employee, who is a health assistant (and is outside of the scope of the Australian Unity agreements).

• [10] The relevant employees are therefore those employees described above who are proposed to transfer their employment from MHC to Australian Unity and who are covered by the PresCare Agreement.

• [11] 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;

• [12] 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 and the Statements of Mr Gow and Ms Stella, 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.
• [13] 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)).

• [14] The Prescare Agreement was approved by the Commission on 2 March 2012 and pursuant to s 312(1) of the Act is a transferrable instrument.

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

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

• [16] The grounds relied on by Australian Unity which are set out in the application are outlined below.

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

• [17] Australian Unity supports the Orders sought by the Application. It wants to provide consistency of the application of industrial instruments and conditions to its workforce, including the transferring employees. It wants to ameliorate the disparity that would arise from having to apply two different industrial instruments apply to a discrete cohort of employees performing the same work in the same business. According to Mr Gow, this disparity may even affect the work of its scheduling teams and rostering.
• [18] I have taken into account the views of the new employer - Australian Unity - 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

• [19] In support of the Application, Australian Unity explained that it had conducted virtual briefing sessions with employees including the transferring employees, and the transferring employees were provided with individual explanatory materials packs. They have also been provided with a letter outlining the conditions relating to their offer of employment. Australian Unity has also consulted with the relevant Union, the UWU. Upon my direction, it has also provided the transferring employees with materials relevant to the Application (including a copy of it) and information about how transferring employees can make submissions to the Commission about the Application and the Orders sought, if they wish to do so. None have, and this fortifies my view that the assertion made by the Australian Unity, that there has been no concern or objection raised by the relevant employees, should be accepted.
• [20] These matters weigh 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

• [21] Australian Unity have explained that any disadvantage for transferring employees if the Order is made will be offset by (a) a lump sum payment being made to the employees, and (b) a "maintained higher rate of pay than the applicable underlying minimum rate of pay until such time as a new enterprise agreement covers and applies to the employment of the Agreement Transferring Employees". Ms Stella said these entitlements have been outlined in the letters sent to the transferring employees. I note further Ms Stella's explanation as to the range of more generous conditions that will apply to the transferring employees under the Australian Unity agreements if the Orders are made.
• [22] None of the Unions have challenged this analysis. On the basis of the material provided I do not think this factor weighs against the making of the Orders sought.

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

• [23] The Prescare Agreement nominally expired on 31 October 2014. No particular submission was made by Australian Unity in respect to this, and it is a neutral factor in my consideration.

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

• [24] Australian Unity submits that if the Orders are not made, its productivity will be impacted negatively by the likelihood that different approaches to scheduling and rostering may need to be adopted in relation to the transferring employees, a pay and condition disparity will exist within groups of employees performing similar roles, and its payroll systems will need to be modified in order to deal with the disparity.
• [25] 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

• [26] Australian Unity submits that the disparity between conditions of employment will require financial investment in creating bespoke payroll measures and will likely require additional investment in compliance. Within a business model involving a strict funding model, these costs may place pressure on Australian Unity's financial viability. I accept this submission and consider this weighs 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

• [27] There is a lack of business synergy between the PresCare Agreement and the other instruments that apply to Australian Unity employees. Some of the aspects of this are referred to above. This weighs further in support of the Application.

• [28] 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].
• [29] Australian Unity submits that it would be in the public interest to make the orders sought by the Application because doing so will strike an appropriate balance between ensuring employees' conditions of employment are maintained and its ability to run its enterprise efficiently.
• [30] 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.

• [31] 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 PresCare Agreement - which is a transferrable instrument that would, or would be likely to, cover the relevant employees - does not, or will not, cover those employees.
• [32] I will also make an Order that two Australian Unity enterprise agreements - the Australian Unity Home Care Enterprise Agreement 2017 and the Australian Unity Home Care Administration Enterprise Agreement 2022 will apply to transferring employees where relevant.
• [33] The Application also appears to seek an Order that in respect to one of the transferring employees, who is a health assistant, that the Health Professionals and Support Services Award 2020 apply to this employee, where the scope of the Australian Unity agreements concerned with this application does not encompass this work.
• [34] I do not consider I can make an Order to this effect. Section 318(1)(b) provides that I may make an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover the transferring employee. A named employer award is defined in s 312(2) and means a modern award that is expressed to cover one or more named employers, or a modern enterprise award. The Health Professionals and Support Services Award 2020 is neither expressed to cover one or more named employers, nor is it a modern enterprise award.
• [35] I note however that it appears likely the Orders I do intend to make in this matter will likely have the effect that the Health Professionals and Support Services Award 2020 apply to the employee in question. As the PresCare Agreement will not apply to the employee in question, it seems likely that given the nature of their work, the Award will apply in any event.
• [36] For the purposes of s 318(4) of the Act, the order will come into operation in respect of the relevant employees on the date that they commence employment with Australian Unity, 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] PR792274

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