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

CALVARY HEALTH CARE - AGED CARE VICTORIA ENTERPRISE AGREEMENT 2023-2025

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

• [1] On 29 October 2025, Calvary Aged Care Limited (Applicant) made an application to the Fair Work Commission (Commission) under section 319 of the Fair Work Act 2009 (Cth) (FW Act) in relation to the operation of the Calvary Health Care - Aged Care Victoria Enterprise Agreement 2023-2025[1] (Agreement).

• [2] The employer covered by the Agreement is Calvary Administration Pty Ltd (CAPL), an associated entity of the Applicant. The Agreement covers CAPL and its employees who principally work at CAPL's residential aged care facilities throughout Victoria.

• [3] On 16 June 2025, employees of CAPL were transferred to the Applicant as part of a consolidation of residential aged care operations within the Calvary Group. The transferring employees perform the same, or substantially the same, work for the Applicant that they performed for CAPL. Under the transfer of business provisions in the FW Act, the Agreement will cover the Applicant and the employees transferring from CAPL.[2]

• [4] The Applicant seeks an order pursuant to section 319(1)(b) of the FW Act, that the Agreement will cover non-transferring employees who perform, or are likely to perform, the transferring work for Applicant.

• [5] Section 311(1) of the FW Act sets out the circumstances in which a transfer of business occurs. It states:

(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).

• [6] In relation to the relevant connection, s.311(6) of the FW Act states:

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.

• [7] Section 312 of the FW Act defines "transferable instrument" to include "an enterprise agreement that has been approved by the FWC".

• [8] Section 313 of the FW 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".

• [9] Having regard to the materials before me, I am satisfied that there was a transfer of business between the Applicant and CAPL for the purposes of s.311(1) of the FW Act for the following reasons:

(i) The transferring employees of the CAPL were employed by the Applicant from 16 June 2025;

(ii) The work of the transferring employees is the same, or substantially the same, as the work they performed for CAPL; and

(iii) CAPL and the Applicant are associated entities.

(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.

• [11] I am satisfied that the Applicant is entitled to make the application,[3] which relies upon the terms of s.319(1)(b) of the FW Act to, in effect, extend the coverage of the Agreement to non-transferring employees.

• [12] In deciding whether to make an order pursuant to s.319(1)(b) of the FW Act, the Commission must take into account the matters set out in s.319(3). I now turn to a consideration of each of those matters.

• [13] The Applicant is the new employer, who seeks, and is supportive of, the proposed orders. This weighs in favour of making the proposed orders.

Views of the employees who would be affected by the order - s.319(3)(a)(ii)

• [14] I issued directions requiring the Applicant to provide to each non-transferring employee a copy of the directions, the application, and the Agreement. The directions provided the non-transferring employees with the opportunity to express their views about the application. No employees sought to provide their views directly to the Commission. This weighs in favour of making the proposed orders.

Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment - s.319(3)(b)

• [15] I am satisfied that the non-transferring employees will not be disadvantaged in relation to their terms and conditions of employment by the making of the proposed orders. This weighs in favour of making the proposed orders.

The nominal expiry date of the agreement - s.319(3)(c)

• [16] The nominal expiry date of the Agreement is 30 June 2026. I consider this a neutral factor in relation to the making of the proposed orders.

Whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace - s.319(3)(d)

• [17] 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 the transferring employees and non-transferring employees are subject to different terms and conditions of employment, this may have a negative impact on employee engagement and in turn upon workplace productivity. This weighs in favour of making the proposed orders.

Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer - s.319(3)(e)

• [18] The Agreement's coverage of non-transferring employees will not cause any significant economic disadvantage. I consider this a neutral factor in relation to the making of the proposed orders.

The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer - s.319(3)(f)

• [19] The granting of the order will result in a greater degree of synergy for the Applicant and the employees who perform the transferring work, as all employees in that part of the Applicant's business will be employed pursuant to a single instrument. This weighs in favour of making the proposed orders.

• [20] Having regard to all the material before me, I am not of the view there are public interest reasons that weigh against making the proposed orders.

• [21] Taking in to account the matters to be considered in section 319(3) of the FW Act, I am satisfied that it is appropriate that the application be granted. An Order [PR794387] to that effect will be issued in conjunction with this decision.

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