Fair Work Act 2009

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

DPG Services Pty Ltd Trading as Opal HealthCare

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

• [1] This is an application, pursuant to s.318 of the Fair Work Act 2009 (Cth) (the Act) filed by DPG Services Pty Ltd Trading as Opal HealthCare (the Applicant), which seeks orders from the Fair Work Commission (the Commission) that a transferable instrument, being the Hakea Group, NSWNMA and HSU NSW Enterprise Agreement 2023 (the Hakea Agreement), will not apply to employees who will be employed by the Applicant following a transfer of business, and that those transferring employees will be covered in their employment with Opal HealthCare by the Opal HealthCare (NSW) Enterprise Agreement 2023 (the Opal Agreement).

• [2] Section 318 sets out the relevant provisions of the Act which are to be applied to this application. They are expressed 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 paragraph313(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.

(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; (g) the public interest.

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;

(b) the day on which the order is made.'

• [3] In the Applicant's Form F40 - Application for Orders in Relation to a Transfer of Business (the Application), the Applicant explained the background to the Application.

• [4] On 1 July 2025, a transfer of business occurred whereby Opal HealthCare (the Applicant) acquired and assumed operations of the Hakea Grove Aged Care facility in Hamlyn Terrace, NSW. This followed approval from the Department of Health, Disability and Ageing on 23 June 2025.

• [5] The current operator, Hakea Grove Aged Care Pty Ltd, employs staff under the Hakea Agreement. Opal HealthCare has extended offers of employment to 132 of these employees, with their new employment to commence on the transfer date, within three months of their termination from the old employer.

• [6] Under section 311(1) the Act, Opal HealthCare will be considered the new employer. The transferring employees will continue performing substantially the same duties, including nursing, personal care, therapy, and support services, ensuring continuity of care at the facility.

• [7] The Applicant contends that the the Opal Agreement provides consistency with its existing employment frameworks, greater administrative efficiency, and improved operational coherence across its NSW operations. In an email to the Commission dated 7 July 2025, the Applicant submitted that of the 132 transferring employees, 104 would receive a higher rate of pay under the Opal Agreement from the first full pay period on or after 1 July 2025. For the remaining 28 employees, the Applicant confirmed that current base rates will be preserved until matched or exceeded by the Opal Agreement, ensuring no reduction in pay.

• [8] The Applicant also noted that continuity of service is to be preserved for all purposes, and existing leave balances, including personal, annual and long service leave, will be recognised. The Applicant emphasised that "no transferring employee will incur a reduction to their base rate of pay as a consequence of the Opal EA applying," and that "approximately 80% of the cohort will in fact receive a higher base hourly rate."

• [9] The Commission was informed that of the 132 employees, 59 returned consent forms. Of those, 56 (or 94.9%) gave explicit consent. The remaining three did not object to the Application and instead raised queries unrelated to the industrial instruments. The Applicant confirmed that the Application and supporting documents were served on all affected employees and no formal objection was received from any transferring employee.

• [10] In addition to pay, the Applicant submitted that the Opal Agreement confers a raft of superior entitlements, including:

• Higher allowances for laundry, on-call periods, and continuing education.
• New allowances not available under the Hakea Agreement, such as nauseous work, AN-ACC Link, medication, tool and leading hand allowances.
• Improved leave entitlements, including 20 days' paid family and domestic violence leave (as compared to 10 under the Hakea Agreement), paid ceremonial and emergency services leave, and paid gender affirmation leave.
• Enhanced parental leave arrangements, including a return-to-work incentive, and superannuation on paid parental leave.
• Minimum payments and overtime for mandatory training, and a more generous higher duties clause.

• [11] The Applicant acknowledged that some conditions under the Hakea Agreement were more beneficial and engaged in discussions with the New South Wales Nurses and Midwives Association (the NSWNMA) and the Health Services Union (the HSU) to resolve concerns regarding conditions. As of the hearing date, the Applicant agreed to preserve the following conditions from the Hakea Agreement for the life of the current Opal Agreement:

• Clause 12: Re-grading of classifications
• Clause 17.4(b): Double time for nurses not given 10 consecutive hours off
• Clause 20.2(j): Extra 0.5 hour pay for broken shifts
• Clause 42: Disciplinary matters
• Clause 13(d): Payment for required NDIS check renewals
• Clause 10.3(b)-(c): Maintenance of part-time rosters and hours

• [12] In an email dated 8 July 2025, the Applicant clarified that it did not agree to preserve the higher long service leave accrual rate of 5 months for each 10 years after the first 10 years. It argued that no transferring employees currently qualify for this entitlement, with the longest-serving employee having completed approximately 8 years' service. The Applicant submitted that "there is no disadvantage to transferring employees at the time of transfer or otherwise for a considerable amount of time."

• [13] The Applicant also declined to preserve conditions identified by the NSWNMA relating to:

• 1200-hour progression for part-time/casual nurses,
• Overtime for meetings and training outside ordinary hours,
• Higher pay during meal break availability,
• Automatic overtime for hours exceeding guaranteed part-time hours,
• Meal allowances.

• [14] Nonetheless, it maintained that the overall package under the Opal Agreementwas more beneficial on balance.

• [15] The NSWNMA did not "fundamentally oppose" the Application in principle but pressed for the preservation of six specific conditions. The day of the Hearing on 8 July 2025, the NSWNMA, the union noted by email on 8 July 2025 that there were three additional agreed matters between the parties the That email relevantly read:

I refer to the hearing before Deputy President Cross this morning in relation to AG2025/2017 Application by DPG Services Pty Ltd Trading AS Opal HealthCare and the email from Mr Raptis at 1:38pm detailing the Applicant's supplementary submissions. On closer inspection of the email, we have identified that some conditions the Applicant and ANMF NSW have agreed to preserve are not reflected in the email summary.

Paragraph 6 of the Applicant's email sets out the conditions/entitlements the Applicant has agreed to preserve. The list omits 3 conditions/entitlements that the Applicant and ANMF NSW had agreed would be preserved, being:

Clause 34.2 in relation to accrual of long service leave at a higher rate of 5 months of long service leave for each 10 years' service after the first 10 years.

Clause 13(d) where the employer requires an Employee to have a valid NDIS check, the employer will pay the cost of renewal.

Clause 10.3(b) - 10.3(c) the Applicant will maintain part time transferring employees' current hours, days of work and shift patterns, including start and finish times for Aged Care employees, with any change to be by agreement with the employee and recorded in writing.

• [16] By response email, Opal confirmed agreement to the issues raised in Clauses 13(d) and 10.3(b) and (d), but denied any agreement to Clause 34.2.

• [17] The NSWNMA sought that the Commission consider the full set of agreed preserved entitlements when determining the matter.

• [18] The HSU were consulted and invited to provide their view with respect to the Application. They provided an email on 7 July 2025 which relevantly read:

The HSU has no further issues that we wish to being to the Commission's attention, beyond those already canvassed by the parties and currently before the Commission as part of this application.

Consideration of Section 318(3) Factors

• [19] The Applicant has clearly articulated its position, supported by documentary evidence, employee consent forms, and engagement with the relevant unions. The NSWNMA's email confirms no fundamental opposition to the Application, subject to the Commission taking note of agreed preserved conditions. The Commission is satisfied that affected parties have been properly consulted and that no objections have been received.

• [20] The Commission is satisfied that no employee will be disadvantaged in terms of their base rate of pay. The majority will be better off, and preserved conditions ensure continuity of key entitlements. While not all benefits under the Hakea Agreement are replicated, the overall impact is neutral to positive, particularly given the extensive list of enhanced allowances and leave available under the Opal Agreement, and I adopt the decision of Deputy President Colman in DPG Services Pty Ltd,[1] where he observed the appropriate consideration is the overall nature of the consideration relative disadvantage, as follows:

Section 318(3)(b) requires the Commission to consider whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment. In my view this consideration is concerned with the question of whether any employees would be disadvantaged on an overall, rather than a line-by-line basis. Further, although s 318(3)(b) requires the Commission to consider whether employees would be disadvantaged by the order, I consider it relevant to take into account benefits and detriments that might accrue to employees outside of the terms of the instrument that would apply as a consequence of the order, because the question of whether employees would be disadvantaged by the order can only be meaningfully assessed objectively and in the context of all of the circumstances that are likely to exist if the order is made. For example, an order under s 318 might on its terms bring about a particular detriment because a condition in a transferable instrument would not apply to transferring employees. But if the new employer undertook to provide that condition, the detriment would be removed.

• [21] The Hakea Agreement expires on 1 August 2025, while the Opal Agreementhas a longer nominal term, expiring on 30 June 2026. This supports industrial certainty.

• [22] Applying two enterprise agreements at the same facility would compromise administrative efficiency. The Applicant has demonstrated that rostering, payroll, and operational systems are aligned to the Opal Agreementand that integration under a single agreement will promote productivity.

• [23] The Commission accepts that dual agreement compliance would lead to increased costs and complexity for the Applicant, including manual payroll processing and HR burden, especially where conditions diverge.

• [24] There is limited alignment between the Opal Agreement and Hakea Agreement. The Opal Agreementreflects enterprise-wide standards across multiple NSW facilities, whereas the Hakea Agreement was tailored to a single site. It is appropriate to adopt the broader instrument.

• [25] The Commission is satisfied that the proposed order supports employment certainty, consistent care standards, and broader public interest goals in the aged care sector.

• [26] For the reasons set out above, and having regard to all factors in s.318(3), I am satisfied that the orders sought should be granted.

Ms L Mbedla on behalf of the Australian Nursing and Midwifery Federation.

[1] [2022] FWC 1651 at [11].

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