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

Calvary Aged Care Limited Trading AS Calvary Aged Care

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

• [1] On 13 September 2025, Calvary Aged Care Limited Trading AS Calvary Aged Care (the Applicant) made an application to the Fair Work Commission (the Commission) under section 319 of the Fair Work Act 2009 (Cth) (the Act) in relation to the operation of the Calvary Health Care - Aged Care South Australia - Enterprise Agreement 2023-2027 [AE530320] (the Agreement or the transferring instrument).

• [2] The Applicant seeks the Commission make an order pursuant to s 319 of the Act, that the Agreement will cover non-transferring employees performing work for the Applicant, Calvary Aged Care Limited t/a Calvary Aged Care ('the new employer').

• [3] A statement from Mr Mark Douglas (National Manager, Workplace Relations) for the Applicant's parent company (Little Company of Mary Health Care t/a Calvary Health Care Australia - ABN 11 079 815 697) (LCMHC) was provided in support of the application. Mr Douglas's statement indicated that:

• Following a November 2021 acquisition of Japara Healthcare Limited (ABN54 168 631 052), LCMHC became the parent company of Calvary Aged Care Ltd (CACL), Calvary Retirement Communities Ltd (CRC), Calvary Administration Pty Ltd (CA) and Calvary Aged Care Services Ltd (CACS).

• The transferring instrument was made on 26 May 2025 and covers both CRC and CA and their employees.

• In May 2025, Calvary sought to move to one approved provider under the Aged Care Act 2024 (Cth) and with approval from relevant Health Departments aged care spaced were transferred from CRC to Calvary Aged Care Limited, and from CACS to Calvary Aged Care Limited.

• This transfer of aged care spaces included a transfer of all assets and liabilities of CRC and CACS to Calvary Aged Care Limited (CACL) and was effective on 2 June 2025.

• That on the 16th of May 2025, employees of CRC and CA were notified of the transfer, and all the aged care employees of CA and CRC were transferred to CACL effective on and from 16th June 2025.

a) A transfer of business has occurred (as defined in s.311),

b) the Agreement is a transferable instrument (as defined in s.312),

1. transferring employees will continue to be covered by the Agreement (per s.313),

d) unless an Order is made under s.319, non-transferring and any new employees will otherwise be covered by the Nurses Award 2020 or the Aged Care Award 2010 in accordance with s.314 of the Act.

e) it is appropriate to make the Order under s.319 so that any transferring employees, non-transferring employees and any new employees performing the same work for the new employer are all covered by the same Agreement.

• [5] Part 2-8 of the Act describes when a transfer of business occurs. It also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.

• [6] Section 311(1) defines "transfer of business", and section 312 defines the types of "transferable instrument" that may transfer from one employer to another. Sections 317 and 319 of the Act empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to non-transferring employees.

• [7] In deciding whether to make orders of this kind, the Commission must take into account the factors set out in section 319(3) of the Act

• [8] The Applicant submits that pursuant to s.311(1) of the Act, a transfer of business occurred on 2 June 2025 and:

a) the transfer of business was of Calvary Administration Pty Ltd (CA) and Calvary Retirement Communities (CRC) (the old employer) to Calvary Aged Care Limited (CACL) (the new employer).

b) all employees of the old employer and the new employer are aged care workers or nurses performing work providing these services to clients of the new employer.

1. the transferrable instrument will transfer with the transferring employees.

d) any new employees employed by the new employer (non-transferring employees) performing transferring work will not be covered by the transferrable instrument.

e) non-transferring employees will be covered by the Aged Care Award 2010 or the Nurses Award 2020.

• [9] The application was made by Mr Mark Douglas, on behalf of the Applicant, who provided a witness statement dated 21 October 2025, accompanied by relevant supporting materials. In reliance on this uncontested evidence, I am satisfied that a transfer of business has occurred.

• [10] Pursuant to s.311 of the Act, I am satisfied that there has been a transfer of business, and the employees of the old employer are "transferring employees" within the meaning of the Act.

• [11] I am also satisfied that the Agreement listed is a transferrable instrument that will cover CACL and the transferring employees in accordance with s.313(1)(a).

• [12] Section 314 of the Act provides for a transferrable instrument to cover other employees in certain circumstances as follows:

"314 New non-transferring employees of new employer may be covered by transferrable instrument

a) A transferrable instrument covers the new employer because of paragraph 313(1)(a); and

b) After the transferrable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and

1. The non-transferring employee performs the transferring work; and

d) At the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non-transferring employee in relation to that work;

then the transferrable instrument covers the new employer and the non-transferring employee in relation to that work.

(2) A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.

(3) This section has effect subject to any FWC order under subsection 319(1)."

• [13] In this instance, either the Nurses Award 2020 or the Aged Care Award 2010 would otherwise apply to the non-transferring employees. Therefore, the condition in s.314(1)(d) cannot be satisfied and the Agreement will not otherwise cover non-transferring employees.

• [14] The Applicant further submits that it is seeking parity of terms and conditions within its workforce and for the instrument covering their terms of conditions of employment to reflect the reality of non-transferring employees performing the transferring work.

• [15] Accordingly, CACL is seeking to apply the same minimum terms and conditions to all its employees who perform transferring work by means of this application for an Order under s.319(1)(b) of the Act.

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

• [16] The Applicant's submissions in support of its application indicates that there are no current non-transferring employees employed by the new employer.

• [17] On 16th May 2025, the Applicant notified all relevant CA and CRC aged care and nursing employees of the proposed transfer. Employees were informed that the transferrable instrument would transfer with transferring employees to the new employer. Subsequent information was also provided regarding the particulars of the Order being sought for new non-transferring employees at the new employer.

• [18] On 9 October 2025, my Chambers issued directions seeking the Applicant provide a copy of my directions to any Union and/or employees impacted by the application and requested any party who had views regarding the application to advise my Chambers by close of business on 24 October 2025.

• [19] On 21 October 2025, the Applicant filed a witness statement authored by Mr Douglas indicating it had complied with my directions. Specifically, that on 9 October 2025, the Applicant sent an email to all employees covered under the Agreement providing an explanation of the application under s.319 and the copy of my directions.

• [20] The ANMF SA and UWU were bargaining representatives for the Agreement that is the subject of this Application and are covered by the Agreement. Both organisations have been notified of the application had have not raised any objections to the order being made.

• [21] The employer submits that, in response to the above, there have been no issues raised by the current workforce at the new employer in relation to the Orders sought.

• [22] Additionally, there have been no issues raised by employees or their representatives with my Chambers in response to the notices provided as indicated above.

• [23] As a consequence, and in all the circumstances, I have formed the view that this factor views in favour of granting the Order sought.

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

• [24] The Applicant submits that no transferring employees will be disadvantaged by the Order sought. Further, it submits that the transferable instrument's terms and conditions are substantially more advantageous and beneficial to employees in comparison to those under the relevant Award.

• [25] I have also had regard to the fact that the transferable instrument was approved by the Commission on 3 September 2025.

• [26] Having consider all the material before me, I am satisfied that employees will not be disadvantaged by the Order in relation to their terms and conditions of employment and therefore, this factor weighs in favour of granting the Order sought.

Section 319(3)(c) - If the order relates to an enterprise agreement - the nominal expiry date of the agreement.

• [27] The nominal expiry date of the Agreement is 30 June 2028. The terms of the Agreement will continue to apply until that time and/or the Agreement is formally replaced or terminated.

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

• [28] The Applicant submits that, if granted, the effect of the Order will be to assist in promoting workplace productivity of the non-transferring employees due to the terms and conditions of the transferring instrument being substantially more beneficial.

• [29] I am persuaded by the merits of these submissions and have formed the view that this factor weighs in favour of granting the Order.

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

• [30] The Applicant submits that the workplace productivity and employee benefits outweigh any economic disadvantages of the transferrable instrument covering the new employees of the new employer.

• [31] Based on these submissions and the material presented, I have formed the view that this factor weighs in favour of granting the Order.

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

• [32] The Applicant submits that if the Order is not made and the transferring and non-transferring employees are left on different terms and conditions of employment, this may have a negative impact on business synergy if both were to apply to the Applicant.

• [33] I consider this factor weighs in favour of granting the Order sought.

• [34] Based on the materials before me, I am satisfied that it would not be contrary to the public interest to make the Order sought and that that granting of the Order would provide more certainty and consistency in relation to employment conditions for both employees and the employer.

• [35] Having considered each of the matters outlined in s.319(3) of the Act and the material that has been filed, I am satisfied that an order pursuant to s.319 of the Act should be made in respect of this application.

• [36] The Order[1] will be issued concurrently with this decision.

[1] PR793617.

Printed by authority of the Commonwealth Government Printer