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

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

• [1] On 4 September 2025, Christian Community Ministries Ltd (the Applicant) made an application to the Fair Work Commission (the Commission) for an order pursuant to s.318(1)(a) of the Fair Work Act 2009 (the Act) that for teachers at Brindabella Christian College, the ACT Christian Schools Teaching Staff Multi-Enterprise Agreement 2020 (the Agreement) will not cover the Applicant and transferring employees from an old employer, Brindabella Christian Education Ltd (the old employer).

• [2] The Applicant is the new employer of a number of employees previously employed by the old employer and covered by the Agreement. The Applicant also seeks an order pursuant to s.318(1)(b) of the Act that the Christian Community Ministries Schools Enterprise Agreement 2024 (CCM Enterprise Agreement) will cover transferring employees.

• [3] Section 311 of the Act sets out when a transfer of business occurs:

Meanings of transfer of business, old employer, new employer and transferring work

(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).

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.

New employer ceases to outsource work to old employer

(5) There is a connection between the old employer and the new employer if:

(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and

(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.

New employer is associated entity of old employer

(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."

• [4] 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) 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)).

Note: Paragraph 168A(2)(b) deals with employers that carry on similar business activities under the same franchise."

• [5] There has been a transfer of business pursuant to s.311 of the Act and the employees are transferring employees The Agreement is an enterprise agreement. The Agreement is therefore a transferrable instrument within the meaning of s.312(1)(a) of the Act.

• [6] The Applicant seeks for the Commission to make an order under s.318 of the Act, which is set out below:

"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;

• [7] The Applicant is a not-for-profit organisation that operates 15 schools and associated early childhood education and care services across Australia. The schools educate over 9,000 students and employ over 1,900 staff, the majority of whom are covered by the provisions of the CCM Enterprise Agreement.

• [8] In May 2025, the Applicant acquired the assets of Brindabella Christian College and assumed responsibility for its operations when it entered voluntary administration and then commenced liquidation. As part of the acquisition, most of the employees transferred employment to the Applicant. The Applicant accepts that there has been a transfer of business and the Agreement applies to those transferring employees.

• [9] In respect of any new employees employed at Brindabella Christian College after May 2025 and who did not transfer, they are covered by the CCM Enterprise Agreement. This has resulted in employees working in the same establishment performing the same kind of work being covered by either the CCM Enterprise Agreement or the Agreement.

• [10] Upon the application being allocated to me, I sought the views of the Independent Education Union of Australia (IEU) and those of affected employees.

• [11] The IEU is covered by both agreements and maintains members covered by both agreements. It sought the views of its affected members and provided written submissions for the Commission's consideration. They are detailed below.

• [12] Six employees covered by the Agreement also provided their views with four supporting the application, two opposing.

• [13] The application has been determined on the basis of written material provided by the relevant parties. The parties agreed and I determined it was not necessary to convene a hearing to determine the application.

• [14] The Applicant has standing to make the application under s.318(2)(a) and the proposed order is an order of the kind contemplated by s.318(1)(a). I turn then to consider the matters listed in s.318(3) to determine whether the proposed order should be made.

Submissions and conclusions on the statutory criteria

Subsection 318(3)(a)(i) - views of the new employer, or a person who is likely to be the new employer

• [15] The Applicant has made the application because it states that having employees in the same workplace being covered by two different enterprise agreements makes it difficult to manage entitlements accurately and efficiently. The employees presently covered by the Agreement will receive a significant pay increase if they are ordered to be covered by the CCM Enterprise Agreement.

• [16] The Applicant consulted with the IEU and following that consultation committed to the following:

"Until such time that the Christian Community Ministries Schools Enterprise Agreement 2024 is replaced or renegotiated, CCM undertakes to:

1. Apply a 4.5% location loading under Clause 11.4.1
2. Maintain paid maternity leave at 14 weeks (Clause 10.9.2(c))
3. Maintain paid paternity leave at 2 weeks (Clause 10.10.2(b))
4. Preserve existing promotional positions (positions of responsibility) unless impacted by genuine redundancy or performance management processes or otherwise altered by mutual agreement
5. Ensure no employee is financially disadvantaged by the change of the Agreement."

• [17] The Applicant then undertook a poll of workers with 54% of affected employees who participated in the poll supporting the making of the application.

• [18] The views of the Applicant are a consideration that weighs in favour of making an order.

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

• [19] As per above, 54% of affected employees who participated in the poll supported the making of the application.

• [20] Of the six employees who provided views to my chambers, four fully support the order being made.

• [21] An employee opposing the order being made provided the following submissions:

"Reduction in personal/carer's leave: The proposed agreement would reduce paid personal/carer's leave from 25 days to 10 days per year, which is a major loss of entitlement. This reduction is equivalent to 15 days of salary per year, and would impact staff well-being and flexibility, especially for those with caring responsibilities.

Long service leave impacts: While existing accruals are protected, the proposed changes would reduce the long service leave entitlement from 2 weeks per year of service to approximately 1.3 weeks per year after 10 years. [...] this proposed reduction is particularly concerning and undermines the incentive for long-term retention.

Reduced paid parental leave: The CCM agreement proposes only 14 weeks of paid parental leave, compared to 20 weeks under the existing MEA in Christian schools. This is also well below what is offered in ACT Government and Catholic schools, and may impact staff planning to start or grow their families.

These proposed changes would weaken our employment conditions and could affect both staff morale and the school's ability to attract and retain experienced teachers. I believe it is in the public interest and in the interest of fairness that the current MEA continues to apply to transferring employees."

• [22] The other employee opposing the order being made provided the following submissions (summarised):

• The proposal to reduce LSL to a 1.3 week cap effectively tells long term workers that their extended years of service are not truly valued, especially when workers of 10 years service in other schools in the ACT receive a jump to 2 weeks.
• A reduction in personal leave negatively impacts older staff members whose health with likely to be somewhat more vulnerable than younger staff.
• Positions of Responsibility are not guaranteed, undermining the confidence of staff.

• [23] Some other submissions made by this employee dealt with conditions under the CCM Enterprise Agreement against other industry/sector advancements which is not a relevant consideration in this application.

• [24] The IEU expressed the views of its members as follows (following the committed undertakings at [16]):

• The reduction in personal leave.
• Access to subsequent maternity leave is longer under the CCM Enterprise Agreement, requiring a return to work of at least 12 months instead of two school terms (approximately 22 weeks).
• Accrual for long service leave does not increase to two weeks after 10 years of service.
• The CCM Enterprise Agreement does not permit pro rata payment of long service leave upon termination after five years of service.
• No portability arrangements with other Christian schools in the ACT or with other community sector employers as part of the Long Service Leave Act (Portable Schemes) Act 2009 (ACT).

• [25] The IEU requested further information of the Applicant as to how many affected employees participated in the poll. The Applicant advised that 49 out of 79 affected employees participated in the poll. The IEU submitted that this demonstrates only 32% of affected employees support the application. The IEU opposes the making of the order.

• [26] I have provided all employees affected by this matter an opportunity to correspond with my chambers and provide views. Of those who did, four are firmly in support of the making of the order and two are not.

• [27] I have also had regard to the views of the IEU, representing its members in respect of employees likely to be affected by some reduced conditions if the order is made.

• [28] Having regard to the totality of the views of the employees, I consider this to be a neutral consideration.

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

• [29] The Agreement has not made provision for a pay increase since 1 July 2022. If any additional pay increases have been provided to employees, it has been by way of benevolence or negotiation, not by obligation or entitlement. The Applicant advised that an administrative increase was made in July 2023, which now represents the Current Annual Rate in the table below:

• [30] If an order is made, employees will become entitled to a significant pay increase, with a further increase on 1 January 2026 and 1 July 2026. If an order is not made, there is no obligation on the Applicant to make any pay increase to the transferred employees.

• [31] I note that some employees will be disadvantaged in respect of leave entitlements and other conditions detailed in [21-24].

• [32] The Agreement requires the Applicant to make an additional superannuation contribution of 1% of applicable earnings to the nominated fund on behalf of any employee who is making their own contribution of at least 1% of applicable earnings to the nominated fund on 1 June 2020 while the employee continues to make such a contribution. The CCM Enterprise Agreement does not contain this provision.

• [33] The IEU noted the substantial pay increases provided under the CCM Enterprise Agreement but submitted that those increases cannot be used to offset the disadvantages to affected employees' terms and conditions.

• [34] I do note that some employees will be disadvantaged if the order is made. The IEU submitted that the number of employees who have reached 10 years of service is small, and I also note the number of women who would seek to take subsequent periods of maternity leave is a small cohort. Employees who were contributing superannuation as detailed in [32] will no longer have that additional 1% employer contribution paid into their account.

• [35] I am of the view that some employees will be disadvantaged by the making of an order which weighs against the making of an order.

• [36] In respect of the beneficial aspects of the significant pay increases, I shall deal with that in the nominal expiry date and public interest considerations.

Subsection 318(3)(c) - if the order relates to an enterprise agreement - the nominal expiry date of the agreement

• [37] The nominal expiry date of the Agreement is 30 June 2023. There is no bargaining on foot and no obligation to make wage increases to employees covered by the Agreement.

• [38] The nominal expiry date of the CCM Enterprise Agreement is 30 December 2026.

• [39] If the order is made, the affected employees are provided with certainty of substantial pay increases which will be realised immediately and in the first half of 2026. This weighs in favour of making the order.

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

• [40] The Applicant stated that its payroll office centrally manages the HR and payroll processes for the whole organisation. Where 79 employees are covered by one agreement and more than 800 are covered by another agreement, it presents difficulties administrating a separate payroll and systems. The Applicant submitted that having all employees covered by the same agreement would deliver efficiency and accurate and consistent payroll and HR services.

• [41] The IEU submitted that the Applicant's operation of the school effectively means that productivity relates to the delivery of education.

• [42] I accept the Applicant's submissions and note that an order would enable administrative simplicity, promote organisational consistency and allow for internal equity as to the terms and conditions of employment. I consider that this weighs in favour of making the order.

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

• [43] The Applicant submitted that the productivity and efficiency issues of maintaining separate terms and conditions for peer employees creates an economic disadvantage for the Applicant. It submitted, without evidence, that the greater LSL and personal leave provisions are economically unsustainable.

• [44] The IEU submitted that increased personal/carers leave entitlements are only realised in circumstances when the employee is unable to attend work due to personal illness or injury or is required to provide care to a member of their immediate family or household and therefore there would not likely be a significant economic advantage in continuing to apply the Agreement.

• [45] For those employees entitled to the increased long service leave at 10 years, it was submitted that this group is limited and their longstanding service is likely to confer operational and cultural benefits to the Applicant.

• [46] It was submitted that the women who may become eligible for subsequent paid maternity leave is expected to be very few.

• [47] It was submitted that the burden of administrating two enterprise agreements for teachers would not result in a significant economic disadvantage.

• [48] I note that the substantial pay increases to be provided to all employees if the order is made far outweigh any cost the Applicant would incur in maintaining more generous conditions within the Agreement. For that reason, perversely, this weighs against the making of an order.

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

• [49] The Applicant noted that both agreements are similar in structure and intent and build upon the underpinning Educational Services (Teachers) Award 2020.

• [50] I consider this to be a neutral consideration.

• [51] The Applicant submitted that there are not any public interest considerations, but by ensuring that transitioning staff receive equitable and transparent conditions, the CCM Enterprise Agreement helps maintain high standards of workforce performance and staff wellbeing.

• [52] The IEU stated that the 'public interest' has been held to be "matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards."[1]

• [53] The IEU submitted that there are several public interest considerations to be taken into account in the making of the order which include:

• The order will create disadvantages to employees in relation to their terms and conditions of employment.
• The CCM Enterprise Agreement removes the benefits of the Agreement which upholds the industrial standards for Christian schools in the ACT. The IEU is currently in negotiation of a new replacement Multi-Enterprise Agreement which purports to improve on the conditions that are provided in the Agreement.

• [54] It was submitted that an order would mean employees at Brindabella Christian College will have inferior terms and conditions of employment to employees in other Christian schools in the ACT.

• [55] The Applicant noted that it is not appropriate to speculate what conditions might be achieved by the IEU. In any event, bargaining to replace the CCM Enterprise Agreement is expected to commence in mid-2026 where employees at Brindabella Christian College will have the opportunity to pursue improved conditions.

• [56] I consider it would be contrary to the public interest to have a cohort of 79 employees employed by the Applicant to be denied generous pay increases, which will be payable now, on 1 January 2026 and 1 July 2026, when so many of their direct peers and colleagues in other schools the Applicant operates will enjoy those increases. Bargaining for a new agreement may not be achieved until 2027 and having regard to inflation and the maintenance of proper industrial standards, it would be unfair to deny all of the employees the substantial pay increases to maintain generous long service leave conditions and other benefits for a small cohort of employees.

• [57] Having regard to the public interest in providing a substantial pay increase to affected employees, this weighs in favour of the making of an order.

• [58] Deputy President Roberts said the following in the decision of Australian Catholic University Limited t/a Australian Catholic University [2024] FWC 2828:

"[29] Applications of this kind involve an assessment of the desirability of departing from the default position provided for by Part 2-8 of the Act that the instrument follows the employees where there is a transfer of business. The objects of Part 2-8 dictate that there must be a balance struck between the protection of employees' conditions of employment and the interests employers have in running their enterprises efficiently. Section 318 recognises the need for flexibility in some transfer of business scenarios provided an appropriate balance is achieved..."

• [59] Further to the above, there is also a desirability to ensure that where generous conditions will apply on the making of an order, particularly where pay increases as an entitlement have long evaporated by virtue of a nominally expired agreement and the absence of bargaining, those more generous conditions carry substantial weight in the balancing of the application.

• [60] Having considered the matters required by the Act, I consider it appropriate to exercise my discretion to make the order sought:

• The ACT Christian Schools Teaching Staff Multi-Enterprise Agreement 2020 will not cover the Applicant and transferring employees Brindabella Christian Education Ltd; and
• The Christian Community Ministries Schools Enterprise Agreement 2024 will cover the transferring employees.

• [61] An order [PR794125] in the terms sought in the application will issue with this decision.

Section 318(4) limits the time by which any order under s.318 can come into operation. As the employees have already become employed by the Applicant, the order accompanying this decision will take effect from the date of the decision consistent with the requirements of s.318(4).

[1] Re Aurizon Operations Ltd [2015] FWCFB 540 at [129] citing RE Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 138 IR 34 at [23].

Printed by authority of the Commonwealth Government Printer