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

Application for orders relating to transferable instruments in a transfer of business

• [1] Christian Community Ministries Ltd (CCM) is a not-for-profit organisation that operates 15 schools and associated early childhood education and care services across Australia. In May 2025, CCM acquired the assets of Brindabella Christian College (the College) from Brindabella Christian Education Limited (BCEL) and assumed responsibility for its operations after BCEL entered voluntary administration.

• [2] CCM has applied for the following orders pursuant to s.318 of the Fair Work Act 2009 (the Act) to simplify the coverage of industrial instruments for 18 employees of the College who transferred from BCEL to CCM in connection with the transfer of business:

1. With respect to employees in the Preschool/Childcare services classification stream, the ACT Christian Schools General Staff Multi-Enterprise Agreement 2021 (ACT MEA) does not cover CCM or transferring employees in relation to the transferring work; and
2. The Christian Community Ministries Schools Enterprise Agreement 2024 (CCM EA) covers transferring employees.

• [3] The question is whether the orders sought by CCM should be made.

Orders under section 318 of the Fair Work Act 2009

• [4] Part 2-8 of the Act describes when a transfer of business occurs and provides for the transfer of enterprise agreements from one employer to another in connection with a transfer of business.

• [5] 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, 318 and 319 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument covers, or does not cover, the new employer in relation to the transferring employees and non-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."

• [7] On the materials, a transfer of business has occurred for the purposes of subsection 311(1) of the Act from BCEL to CCM because:

1. the employees' employment with BCEL has terminated;
2. immediately after the College acquisition by CCM was finalised, the employees were employed by CCM;
3. the work affected employees perform for CCM is the same as the work they performed for BCEL (the transferring work); and
4. there is a connection of the type described in subsection 311(3) (transfer of assets). The College continues to operate as a school and CCM now owns and has the beneficial use of the assets previously used by BCEL in connection with the transferring work.

• [8] The ACT MEA is a transferable instrument. BCEL employees who became employees of CCM are transferring employees in relation to the transfer of business.

• [9] Factors relevant to the exercise of the discretion in section 318 of the Act are set out in subsection 318(3) and are now considered in turn.

The views of CCM and employees who would be affected by the order

• [10] CCM's view is that uniform conditions of employment for employees of the College will simplify payroll operations and provide better economic outcomes for employees overall.

• [11] The Independent Education Union (IEU) defers to the views of employees and for that reason does not oppose the application. However, it notes that terms and conditions in the CCM EA are less favourable to employees in certain respects than the ACT MEA. This includes provision for personal/carer's leave, superannuation, parental leave and long service leave. Prior to and after the acquisition of the College by CCM, the IEU met on several occasions with employees to explain the Act's transfer of business rules and to discuss the potential reduction in entitlements with employees:

• [12] CCM responded with an undertaking to employees that:

"For the life of Christian Community Ministries Schools Enterprise Agreement 2024, CCM undertakes to:

1. Apply a 4.5% location loading under Clause 1 1.4.1.
2. Maintain paid maternity leave at 14 weeks (Clause 1 0.9.2(c)).
3. Maintain paid paternity leave at 2 weeks (Clause 10.1 0.2(b)).
4. Ensure no employee is financially disadvantaged."

• [13] CCM sought the views of the 18 employees affected by this application by:

1. providing them with information about the proposal and a comparison of the two agreements in the form of memorandum sent to staff on 1 August 2025,
2. hosting a staff meeting to answer questions on 6 August 2025, and
3. inviting employees to give feedback through an anonymous survey by 8 August 2025.

• [14] 13 responses to the employee survey were received. All 13 employees indicated support for the proposal.

Whether any employees would be disadvantaged in relation to their terms and conditions of employment

• [15] There will be some disadvantage to employees because of the issues described above in relation to reduced entitlements to personal/carer's leave, opportunity for additional superannuation contributions, parental leave and long service leave. On the other hand, most employees will benefit from increases in base salaries. The exception is any employee in the classification of Education 6.1 Grade under the CCM EA, for whom existing salaries will be maintained until 1 January 2026 to ensure employees are not worse off.

• [16] On balance, I am satisfied that transferring employees will not be disadvantaged on an overall basis if the application is granted although there will be some less favourable changes in their entitlements.

• [17] The ACT MEA nominally expired on 30 June 2024. The CCM EA nominally expires on 30 December 2026.

Whether the ACT MEA would have a negative impact on productivity at CCM

• [18] CCM submits that its payroll office centrally manages HR and payroll processes across CCM and administering two different agreements with different conditions and rates of pay will increase the administrative compliance burden on CCM.

• [19] The IEU disputes this submission having regard to CCM's undertakings to match relevant entitlements under the ACT MEA and further submits that productivity is a 'marginal consideration' in the context of non-for-profit educational institutions.

• [20] I do not accept that productivity can be discounted as a relevant consideration simply because of the nature of CCM's business. Streamlining administration systems is an important way to promote the efficient allocation of resources while common terms and conditions for employees working side by side can help reduce loss of productivity by limiting the opportunity for friction to arise within the workplace.

Whether CCM would incur significant economic disadvantage as a result of coverage by the ACT MEA

• [21] There is a cost involved in two separate enterprise agreements covering the same or similar work at a single site with different terms and conditions of employment. There is insufficient evidence to permit any reliable quantification of this cost as a proportion of CCM's overall economic activities and for this reason, I am not satisfied that continuing coverage of the ACT MEA at the College would cause CCM to incur a relevant significant economic disadvantage.

Degree of business synergy between the transferable instrument and other workplace instruments covering CCM

• [22] There is a degree of business synergy between the ACT MEA and the CCM EA in the sense that both are based on the provisions of the Educational Services (Schools) General Staff Award 2020. As noted above, there are also key differences between the instruments that are sought to be resolved by this application.

• [23] There is a degree of public interest in this matter in connection with the widely reported circumstances leading BCEL to enter voluntary administration and the related impact on the school and wider community. Promoting confidence and stability in education and care for staff, students and parents connected to the College is in the public interest. Otherwise, the issues raised by the application are matters affecting the private interests of the parties in a way that does not undermine the established legislative safety net of minimum terms and conditions of employment.

• [24] On balance, I am satisfied that the conditions for the making of an order have been met, and it is appropriate to grant the application under section 318 of the Act.

• [25] Order PR792554 will issue separately to this decision.

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