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 orders relating to transferable instruments in a transfer of business - undertakings provided - Order granted.

• [1] DPG Services Pty Ltd T/A Opal HealthCare (the Applicant) made an application on 25 August 2025 pursuant to s 318 of the Fair Work Act 2009 (the Act) for orders that the Australian Aged Care Group Pty Ltd, ANMF and HWU Enterprise Agreement 20241 (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] There are 275 transferring employees who perform work at three aged care facilities in Victoria. The transfer date was 1 September 2025. Prior to that date I convened a conference on an expedited basis to consider the application. The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) participated alongside the Applicant at an initial conference on 28 August 2025.

• [3] In the course of that conference it became clear that a number of issues remained unresolved between the Applicant, the ANMF, and the HSU. I issued an interim decision[1] and order[2] on 29 August applying the Opal Agreement to the transferring employees until 26 September 2025 and listing the application for a further conference.

• [4] A second conference was convened on 3 September 2025. Significant progress was made in addressing the concerns expressed by both the ANMF and HSU.

• [5] Section 318(3) sets out a number of factors the Commission must have regard to in considering whether to make an order pursuant to s 318(1). The areas of dispute were confined to s 318(3)(b) which requires a consideration of whether any employee would be disadvantaged by the order in relation to their terms and conditions of employment.

• [6] At a third Conference on 17 September the parties explored each of the remaining areas where it was said the order, if made, would disadvantage the transferring employees. I made recommendations to the parties in respect of each outstanding concerns and made directions for the parties to exchange further views following the conference. On 22 September I issued a further interim order[3] amending the initial order so as to operate for a further period to 17 October 2025.

• [7] The parties agree that of the mandatory considerations in s 318(3), the only one weighing against the grant of the order sought was (3)(b). With that in mind, throughout the conference process the parties developed a series of undertakings to be made by Opal regarding the conditions of the transferring employees. The undertakings are directed at limiting the disadvantage visited upon the transferring employees.

• [8] The ANMF and HSU have now expressed support for the form of undertakings agreed by Opal. I accept those undertakings and they are annexed to this decision.

• [9] Having regard to the considerations set out in s 318(3) and the undertakings provided I am satisfied that it is appropriate to make the order and I grant the application subject to the undertakings.

• [10] The Opal Agreement will therefore apply to the transferring employees in place of the AACG agreement.

• [11] A final order to that effect will issue separately.

Mr A Snowball for the Australian Nursing and Midwifery Federation

[1] [2025] FWC 2549

[2] PR791212

[3] PR791976

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