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

DPG Services Pty Ltd Trading AS Opal HealthCare

Interim order - transfer of business - s 318

• [1] On 20 August 2025 DPG Services Pty Ltd T/A Opal HealthCare (the Applicant) made an application pursuant to s 318 of the Fair Work Act 2009 (the Act) for orders orders that the Australian Aged Care Group Pty Ltd, ANMF and HWU Enterprise Agreement 2024[1](AAG Agreement) will not cover it or any transferring employees as defined in Part 2-8 of the Act, being employees of Opal HealthCare who were formerly employed by Australian Aged Care Group Pty Ltd (AACG) to perform work at three aged care facilities and covered by the AAG Agreement_._ The Applicant also seeks orders that the transferring employees will be covered by the Opal HealthCare (Victoria) Enterprise Agreement 2023 (Opal Agreement).

• [2] The application relates to employees who work at three aged care facilities in Victoria (the transferring employees) namely:

a) Banfields Aged Care, located in Cowes;

b) Kew Gardens Aged Care, located in Kew; and

c) Mt Eliza Gardens Aged Care, located in Mt Eliza (together, the workplaces).

• [3] The workplaces are currently operated by AACG. On 1 September 2025 a transfer of business to Opal Healthcare will take effect. The Department of Health, Disability and Ageing has approved the Applicant's acquisition of the facilities on and from the transfer date.

• [4] The Applicant sought that the matter be dealt with expeditiously due to the impending transfer date and the matter was listed for conference on 28 August 2025. The Applicant was represented by J Raptis solicitor who was granted permission to appear as I considered the requirement in s. 396(2)(a) was met. The Australian Nursing and Midwifery Association (ANMF) and the Health Services Union of Australia (HSU) also appeared at the conference.

• [5] The Applicant has offered employment to 275 transferring employees. It is proposed that those who accept the offers will commence employment on the transfer date. The work that the transferring employees will perform for the Applicant will be the same or substantially the same as the work that they perform for the old employer. Specifically, nursing, personal care, diversional therapy and environmental services crucial in the running of each of the facilities and provide residential aged care services to each of the facility's residents.

• [6] In the circumstances described there will be a transfer of business within the meaning of s. 311(1) of the Act. Section 313(1) of the Act provides that a transferable instrument that covered a previous employer and the transferring employees immediately before the termination of the transferring employee's employment, will cover the new employer. The operation of these sections means the Applicant would be covered by the AACG Agreement in relation to the transferring employees. Section 313(3) provides that s. 313(1) is subject to s. 318(1). Section 318(1) empowers the Commission to make an orders that an agreement that would or would be likely to cover a new employer and a transferring employee does not or will not cover the new employer and transferring employees and that an enterprise agreement that covers the new employer covers or will cover the transferring employees.

• [7] The Applicant seeks orders pursuant to section 318(1) of the FW Act that the AAG Agreement not cover it and the transferring employees, and the enterprise agreement that currently covers its existing employees in Victoria, the Opal Agreement, cover the transferring employees instead.

• [8] Section 318(3) of the FW Act provides that the Commission must take a number of matters into account when making orders pursuant to section 318(1). Each of those matters is addressed in the application. The parties agreed that I can be satisfied that so far as those matters apply they support the making of the orders, save for the matter raised by s. 318(3)(b).

• [9] Section 318(3)(b) requires a consideration of whether any employee would be disadvantaged by the order in relation to their terms and conditions. The Applicant has provided a detailed comparison of the terms of the two Agreements. It believes that the employees would not be disadvantaged by the orders. The Agreements are comprehensive and the comparison is detailed. The Applicant has been in discussions with the ANMF and HSU seeking their views on the question of disadvantage. The unions have expressed the view that there are a small number of matters that need addressing to ensure the employees are not disadvantaged. The parties have not had time to finalise those discussions prior to the transfer date.

• [10] As the transfer date is imminent, the Applicant asks that I make an interim order while the final issue between the parties is resolved. It contends that the administrative burden of applying the AAG Agreement for a short time while the outstanding issues are resolved justifies the making of interim orders. The parties are currently in discussions and a further conference will be conducted on 3 September 2025 in the Commission. It is anticipated that any outstanding matters, if not finalised by then, will be finalised at the conference. The union parties do not object to the making of the interim orders on the basis that those orders will be revisited if the outstanding matters are not resolved.

• [11] Section 589(2) states that the Commission 'may make an interim decision in relation to a matter before it.' The power was considered by the Full Bench of the Commission in Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another [2020] FWCFB 4514 (Wills). The Full Bench was dealing with the question fof whether an interim decision should have been made under s.789FF, the anti-bullying provision in the Act. It made the following observations about s. 589(2) at [34]:

➣ The Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires.

➣ There is nothing to prevent the Commission from issuing interim decisions in an anti-bullying matter, consequent upon having reached the required state of satisfaction as to the matters set out in s.789FF(1).

• [12] I consider this reasoning applies equally to s. 318(1). Section 589(2) is not an independent source of power to issue interim orders. The Commission must be satisfied that an interim order can be made in accordance with the requirements of the Act before making the order. Absent a particular 'matter before it', the Commission has no power to do anything at all under s 589(2). The nature of the matter that it has before it will determine whether any order may be made.

• [13] I have a matter before me pursuant to s. 318(1). In making a decision to make orders under that section I am required to consider the matters in s. 318(3). I have considered those matters and consider that there is sufficient before me to make a decision, albeit an interim decision, to make orders. Further I find that the circumstances of the imminent transfer date, which follows and is in accordance with Government approval, the large number of employees involved, the complexity of the two agreements, the small number of outstanding matters to be addressed to ensure the employees are not disadvantage, and the views of the unions justify the making of the orders on an interim basis.

• [14] Interim orders will issue in the terms sought in the application but they will only operate for 4 weeks. This will allow the parties time to resolve the outstanding matters. If those matters are not resolved, the parties will be provided the opportunity to bring final argument so that the matter can be finally determined within a short timeframe.

• [15] In Wills at [49] the Full Bench also said:

[49] The fact that the requisite state of satisfaction may be reached, or not reached, at an interlocutory hearing on the basis of the material then before the Commission does not foreclose the result of the final hearing. Further evidence adduced at the final hearing may cause the Commission to cease to be, or come to be, satisfied (as the case may be) as to the 789FF(1)(b)(i) and (ii) matters. This will in turn open or close the door to the making of final orders

• [16] The orders will issue along with this decision.

• [17] The matter is listed for further Conference before me on 3 September 2025.

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