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[227]
[2026] FWC 1001
General information, not legal advice.
Fair Work Commission
2026-04-02
Original judgment source is linked above.
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 instrument
[1] DPG Services Pty Ltd trading as Opal HealthCare (the Applicant) has lodged an application under s.318 of the Fair Work Act 2009 (the Act) seeking orders from the Fair Work Commission (the Commission).
[2] The Applicant seeks the following orders:
(a) Pursuant to s.318(1)(a) of the Act, the Commission orders that the Sunnymeade and QNMU - Nurses Enterprise Agreement 2024 (AE527006) (Sunnymeade Nurses Agreement) will not cover the Applicant or any transferring employees as defined in Part 2-8 of the Act, being employees of the Applicant who were formerly employed by Jomal Pty Ltd (the old employer) at the Sunnymeade Park aged care facility (the Facility) located in Caboolture in Queensland, and covered by the Sunnymeade Agreement.
(b) The Commission further orders, pursuant to s.318(1)(b), that the transferring employees referred to in (a) will be covered in their employment with the Applicant by the Opal HealthCare (Queensland) Enterprise Agreement 2023 (Opal Agreement).
(c) In accordance with s.318(4) of the Act, this Order shall come into operation in relation to each transferring employee on and from the date of this Order, or at the time when the transferring employee is employed by the Applicant, whichever is the later.
[3] A Hearing was held on 24 March 2026 by Video using Microsoft Teams.
[4] The Applicant was represented by Mr George Raptis of Service Industry Advisory Group (Legal) Pty Ltd. The Respondent was represented by Industrial Advocates, Ms Courtney Trevascus and Mr Kevin Crank of the ANMF.
[5] The following people provided witness statements in the matter and were cross examined during the Hearing:
[6] On 2 March 2026 (transfer date), there was a transfer of business from the old employer, whereby the Applicant purchased and took over the operations of the facility located in Caboolture in Queensland.
[7] The old employer currently employs nursing employees at the Facility who are covered by the Sunnymeade Nurses Agreement. The Applicant offered employment to 165 of those employees (transferring employees) and that employment commenced on the transfer date, being within three months of the termination of their employment with the old employer.
[8] The Applicant, therefore, is the new employer, for the purposes of s.311(1) of the Act.
[9] The work that the transferring employees are performing for the Applicant is the same or substantially the same as the work that they perform for the old employer. Specifically, the provision of nursing care services to facilitate the running of the Facility and provide residential aged care services to the Facility's residents.
[10] There is a connection between the old employer and the Applicant in accordance with s.311(3) of the Act, in that effective from the transfer date:
(a) the business owned by the old employer in respect to the Facility transferred to the Applicant;
(b) the business assets owned by the old employer in respect to the Facility transferred to the Applicant; and
(c) the Applicant will carry on the business previously carried on by the old employer in respect to the Facility.
[11] Accordingly, pursuant to s.311(1) of the Act, there has been a transfer of business.
[12] The Sunnymeade Nurses Agreement presently covers the transferring employees.
[13] Section 313(1) of the Act provides that a transferable instrument that covered the old 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 that subject to the foregoing, the Applicant will remain covered by the Sunnymeade Nurses Agreement in relation to the transferring employees, subject to s.318(1) of the Act.
[14] The Applicant and the ANMF engaged in ongoing communications before the hearing in an attempt to reach a consent position between the parties in relation to this application.
[15] Through those communications and consideration of the issues raised by the ANMF, the Applicant advanced a revised proposal that, should the Orders be granted, it will confer the further and final wage increase under the Sunnymeade Nurses Agreement to base rates of pay under that enterprise agreement for transferring employees, and implement preservation arrangements that will maintain the continued operation of certain key more beneficial terms, conditions and entitlements under the Sunnymeade Nurses Agreement until the nominal expiry date of the Sunnymeade Nurses Agreement, 30 June 2027, or the date of operation of an enterprise agreement that replaces the Opal Agreement and covers the transferring employees, whichever occurs first.
[16] These preservations arrangements would involve:
(a) applying the 3% increase effective from the first full pay period on or after (FFPPOOA) 1 July 2026 to base rates of pay under the Sunnymeade Nurses Agreement;
(b) maintaining the continued payment (where applicable) of the laundry allowance under the Sunnymeade Nurses Agreement, and applying the 3% increase to this allowance per the terms of the Sunnymeade Nurses Agreement;
(c) maintaining the higher on call and travel allowances under the Sunnymeade Nurses Agreement, and applying the 3% increase to these allowances per the terms of the Sunnymeade Nurses Agreement;
(d) maintain the travel allowance entitlement including a 3% increase to this allowance;
(e) retaining the team leader and Registered Nurse qualification allowance entitlements under the Sunnymeade Nurses Agreement, and applying the 3% increase to these allowances per the terms of the Sunnymeade Nurses Agreement;
(f) retain the Registered Nurse qualification allowance entitlement in clause 17.11, including the 3% increase to the allowance;
(g) adopting the more beneficial paid rest break entitlements under the Sunnymeade Nurses Agreement;
(h) preserving the superior annual leave and long service leave accrual rates under the Sunnymeade Nurses Agreement; and
(i) accrual of long service leave at the rate of one week for each year of continuous service, and the ability to access long service leave after completion of seven years' continuous service.
[17] Additionally, and as part of its proposal, the Applicant will:
(a) provide transferring employees with an initial allocation of uniforms free of charge; and
(b) after three months following the transfer date, conduct a review of the contracted hours of part-time transferring employees with a minimum of 12 months' continuous service with the old employer prior to 1 March 2026. Where such part-time transferring employee has regularly worked more than their specified contract hours in the three-month period after 1 March 2026, the Applicant will increase the employee's contracted hours to reflect the hours regularly worked, subject to certain increases in hours worked not being incorporated into the adjustment made.
[18] Further, the Applicant said it had provided the ANMF an assurance that should the Orders be granted, transferring employees' wages will not be deducted under clause 12.2(c) of the Opal Agreement where an employee does not give the required notice of resignation, unless the employee authorises specific deduction.
[19] The Applicant and ANMF advised at the commencement of the hearing that the without prejudice discussions reached a stalemate preventing the application proceeding on a consent basis. The ANMF advised on the record that its instructions were that on the basis that undertakings could not be given in relation to two clauses pertaining to employment security, an agreement could not be reached.
[20] I invited the Applicant to consider whether it wished to make any further amendments to its position before the hearing proceeded. After a short adjournment Mr Hunter advised that it was prepared to give a further undertaking in relation to items that committed to preservation of conditions in Mr Hunter's evidence. The Applicant said the proposal would be amended to preserve the conditions until 30 June 2027, so in the event the order is granted, the more beneficial preserved conditions will continue to apply until 30 June 2027.
[21] The Applicant submits that the preservation proposal largely ameliorates the practical disadvantage to the transferring employees if the Opal Agreement in its totality applied to the transferring employees in place of the Sunnymeade Nurses Agreement.
[22] Section 318(3) of the Act provides that the Commission must take the following matters into account when making a determination pursuant to s.318(1):
[23] The Applicant's views as the new employer weigh in favour of granting the Application.
[24] The Applicant submits that it makes this Application as it seeks to apply uniform conditions of employment to existing and transferring employees to ensure consistency and parity for all employees, foster an inclusive and equitable environment and avoid unnecessary administrative costs and challenges.
[25] The Applicant submits that its primary aim is to provide parity to all employees and avoid disparities that would otherwise arise, should the transferring employees undertaking the same work, not receive the benefit of the Opal Agreement and be subject to differently structured wages and entitlements.
[26] The Applicant submits that the Opal Agreement provides wages and benefits which, overall and together with the Applicant's commitments, will ensure transferring employees remain better off overall.
[27] The Applicant submits that there are administrative difficulties in applying two sets of wage structures and terms and conditions of employment within the same workplace, particularly when the Applicant is not familiar with the transferable instrument nor are their systems set up to account for and accommodate the differences. Accordingly, should it be required to apply varying sets of wage structures and conditions of employment within the same workplace, the Applicant will be subject to increased administrative costs and associated burdens. The consideration in relation to the view of the employer is a factor weighing in favour of the application.
[28] The Applicant submits that it has sought the views of the transferring employees who would be affected by the Order, and endeavoured to take reasonable and practicable steps to do so.
[29] On 8 January 2026, the Applicant informed the Australian Nursing and Midwifery Federation (ANMF) via email correspondence of the Applicant's anticipated acquisition of the Facility, the Applicant's intention to provide offers of employment to a significant number of employees of the old employer at the Facility, and for the employment of those employees with the Applicant to be covered by the Opal Agreement pending an application to, and approval by, the Commission.
[30] On 8 January 2026, the Applicant distributed a memo to the transferring employees at the Facility advising of the Applicant's acquisition of the Facility and providing responses to a list of anticipated questions regarding the transition process and employment entitlements.
[31] On 20 January 2026, 6 February 2026 and 12 February 2026, representatives of the Applicant's People and Culture Team attended the Facility to assist with the transition for transferring employees and to answer any questions from the transferring employees pertaining to the Applicant's acquisition of the Facility and related matters.
[32] The Applicant initially submitted that on 27 January 2026, transferring employees were provided with copies of the following documents:
(a) a detailed table comparing conditions and entitlements under the Sunnymeade Nurses Agreement and the Opal Agreement (Comparison Document); and
(b) an information and consent form which, amongst other things, contained various questions and answers about the transfer and the Applicant's proposed application to the Commission among other matters (Consent Form).
[33] The Applicant prepared a Comparison Document to assist transferring employees to understand the differences between the two industrial instruments and to inform their views for the purpose of completing the Consent Form.
[34] The Applicant submitted initially that on the Applicant's understanding, knowledge and information before it, transferring employees received and/or had access to a copy of the Comparison Document prior to submitting their completed Consent Form.
[35] The Applicant contends that the terms of the Consent Form made it unambiguously clear that the transferring employees had an opportunity to record and submit an unmitigated view, whether positive, negative, or neutral, about the Applicant's intended application and the orders sought. The express purpose of the Form was "to confirm [the transferring employee's] views about Opal HealthCare's application to the Fair Work Commission...". The Consent Form invited the employees to seek independent advice. The Consent Form stated the following:
You are entitled to form your own view on the Application
We believe that this is a win / win for all parties and would welcome the opportunity to discuss the matter with you, in the event that you do not wish to support the Application.
Regardless of your view, your view will be submitted to the FWC so that the FWC is able to make a proper determination of the Application, noting as above, they are required by the Fair Work Act to consider the views of transferring employees when making a decision regarding the Application."
[36] The Applicant contends that the questions in the Consent Form were not leading, nor could they reasonably be construed as suggesting that the Applicant's offer of continuing employment was contingent on the application of the Opal Agreement. The Applicant submits that the questions were aimed at eliciting any views of the transferring employees about the proposed application, to enable employees to ventilate any concerns about, or reasons for objecting to, the proposed application, and to allow employees to put forward solutions or suggestions for the Applicant's consideration in respect to their concerns/objection. Completion of the Consent Form was encouraged, but entirely voluntary. The Applicant states that it did not, at any stage, either expressly or impliedly, coerce, pressure, influence, intimidate, or compel transferring employees to indicate in the Consent Form that they had no concerns and agreed to be covered by the Opal Agreement in their employment.
[37] On 27 and 28 January 2026, the Applicant conducted two repeat information sessions on each day at the Facility with the transferring employees to discuss the transfer, the Applicant's intended application to the Commission to obtain an order that the Opal Agreement cover the transferring employees in respect to their employment with the Applicant in place of the Sunnymeade Nurses Agreement, and the Consent Form.
[38] The Applicant said on 13 February 2026, hard copies of the Comparison Document were distributed to transferring employees and the documentation provided to transferring employees included the contact number of the Applicant's HR Service Desk in the event a transferring employee had any questions in respect to the transfer.
[39] The Consent Form provided to transferring employees sought their views by asking them if they had any concerns surrounding the transfer, and whether they objected to the Applicant making an application to the Commission seeking an order that the Opal Agreement cover their employment with the Applicant. The evidence was that the Consent Forms were to be returned to the Applicant by 6 February.
[40] A total of 121 out of 165 transferring employees have returned the Consent Form to the Applicant as at the date of this application, of which:
[41] On 2 February 2026, the ANMF advised the Applicant by email of its concerns that transferring employees will be disadvantaged and not better off overall in their employment should they be covered by the Opal Agreement following the transfer, including in respect to wages. The email attached a document listing 35 terms and conditions of employment that the ANMF has stated are more beneficial to employees under the Sunnymeade Nurses Agreement than the Opal Agreement.
[42] On 19 February 2026, the Applicant provided the ANMF with its response in respect to each of the 35 identified terms and conditions of employment. As part of its response, the Applicant committed to preserving certain more beneficial entitlements under the Sunnymeade Nurses Agreement as detailed in this decision.
[43] On 20 February 2026, the ANMF provided the Applicant with a preliminary response to part of the Applicant's response.
[44] The ANMF submits that there is evidence before the Commission that casts doubt over whether the Consent Forms obtained by the Applicant can be relied on as an accurate portrayal of the views of Transferring Employees.
[45] Ms Trevascus, an Industrial Officer for the ANMF, conducted a comparative analysis of the Sunnymeade Nurses Agreement and the Opal Agreement which sets out the terms and conditions contained in the Sunnymeade Nurses Agreement that she judged to be more beneficial to employees than the equivalent terms and conditions contained in the Opal Agreement. The analysis also included an assessment as to what extent employees transferring to the Applicant may suffer disadvantage if they were to become covered by the Opal Agreement.
[46] On 16 February 2026, Ms Trevascus prepared an electronic survey to be sent to members of the ANMF working as registered nurses, enrolled nurses, and assistants in nursing at the Facility. The purpose of the survey was to convey the ANMF's analysis of the two enterprise agreements and to seek further member feedback.
[47] Although the survey conducted by the ANMF was only completed by 26 of the 165 transferring employees, the ANMF submits that the high degree of commonality between the responses, particularly the 'free text' responses, casts doubt over the conclusions that can be drawn from the Applicant's consent forms.
[49] The ANMF submits that while the Applicant states that 'it is our view that transferring team members will be better off overall by the change' on the Consent Form and lists eight conditions in the Opal Agreement that are more beneficial than the Sunnymeade Nurses Agreement, it makes no mention of conditions that are less beneficial. The ANMF states that it raised its concerns regarding this characterisation of the conditions in this list as 'more beneficial' with the Applicant on 19 February 2026.
[50] The ANMF submits that although there was reference in the Consent Forms to a 'comparison summary' the information was yet to be provided by the Applicant on 3 February 2026, despite the consent forms being due three days later, on 6 February 2026.
[51] In the Applicant's presentation given to staff during the "Enterprise Agreement Information Session(s)", the transferring employees were given the following directions, under the heading 'What do I need to do now?':
"Step 1: Read the Enterprise Agreement information pack and the attachments provided to you.
Step 2: Decide if you would like to be employed under the Opal HealthCare (Queensland) Enterprise Agreement 2023.
Step 3: Complete the Consent to Transfer Enterprise Agreement Coverage Form and return it to your manager."
[52] The ANMF submits that the way the Applicant has worded this instruction to employees could be interpreted to mean that an offer of continuing employment is being made, only under the Opal Agreement. The ANMF contends that it is likely this kind of imprecise wording is what led such a large proportion of survey respondents to believe that their continued employment was contingent on agreeing to be covered by the Opal Agreement.
[53] The ANMF's view is that the above information, along with the survey data in evidence, casts significant doubt over the Applicant's submissions regarding the views of the Transferring Employees. The ANMF's own survey shows that 84% of respondents would prefer to remain covered by the Sunnymeade Nurses Agreement, with the remaining 16% undecided. No respondents to the ANMF's survey said that their preference is to be covered by the Opal Agreement.
[54] The Applicant submits in reply that the ANMF's submissions concerning the language used in the extracted slide from the Applicant's presentation, ought to be rejected as they advance a nonsensical interpretation of the extracted content from the slide which the Applicant says, is not reasonably available to be made based on its express terms. The Applicant submits the ANMF also ignores, and omits reference to, the remaining content of the relevant slide.
[55] Slide 3 in the presentation given to staff during the "Enterprise Agreement Information Session(s)", titled 'Key Dates', states that from 2 March 2026 "Your employment will transfer to Opal HealthCare (DPG Services Pty Ltd)." The Applicant considers that statement to be clear and not qualified on transferring employees submitting a completed Consent Form that records the individual as having no concerns and agreeing to the Application. Slide 6 also informs and guides transferring employees that if they have concerns about the Application, they can record those concerns or provide reasons for objecting to the Application.
[56] The Applicant submits there is no proper basis to find that the information disseminated led the transferring employees to hold a reasonable belief that their continued employment was contingent on agreeing to be covered by the Opal Agreement.
[57] The Applicant cautions against the Commission attributing any probative value to the results of the ANMF's survey of 26 employees. The purpose of the survey was to ascertain whether transferring employees who completed the Consent Form and recorded that they had no concerns with the Opal Agreement covering their employment, felt pressured to agree to be covered by the Opal Agreement.
[58] The Applicant put forth that the wording of question 6 of the ANMF survey incorrectly presupposes or has the tendency to suggest that the respondent to the ANMF survey agreed to be covered by the Opal Agreement, and focuses attention on "pressure", creating an element of bias in the question. The Applicant sought to draw the Commission's attention to the following concerns regarding the survey results and the conclusions sought to be drawn by the ANMF:
(a) one respondent (16 Feb 2026 03:49PM) indicated that they were not given a Consent Form, from which it is inferred that such employee did not complete the Consent Form and therefore did not submit their view about the Application. Yet the same respondent answered that they felt pressured to agree to be covered by the Opal Agreement, and the purported details provided by that individual about that feeling have been redacted;
(b) two respondents (16 Feb 2026 08:53AM; 17 Feb 2026 06:40PM) answered that they submitted their Consent Form in which they recorded having some concerns about being covered by the Opal Agreement but also answered that they felt pressured to agree to be covered by the Opal Agreement. The Applicant submits that employees who recorded in their Consent Form as having some concerns about the Opal Agreement did not agree to be covered by the Opal Agreement and therefore, the survey responses in this respect are entirely inconsistent; and
(c) two respondents (16 Feb 2026 10:10PM; 24 Feb 2026 06:38AM) indicated that their response to the Consent Form was "I said I did not want to be covered by the Opal EA, I said I had some concerns about the Opal EA", yet they also answered that they felt pressured to agree to be covered by the Opal Agreement. The Applicant submits that such responses are inconsistent and contradictory.
[59] At the date of filing, a total of 121 out of 165 employees had returned the Consent Form, of which 116 expressed that they had no concerns in relation to, and did not object to, the proposed application to the Commission for the orders sought. However, the Applicant submits five employees expressed the following concerns:
(a) one employee's concerns related to an operational matter which did not relate to the level of conditions/entitlements between the Opal Agreement and the Sunnymeade Nurses Agreement;
(b) one employee raised a concern about being financially able to make ends meet, but did not elaborate as to the basis of this concern;
(c) one employee raised a concern as to whether the Applicant will apply similar reimbursement arrangements as the old employer for first-aid CPD refresher training. In respect to this concern, training reimbursement entitlements, as well as scholarships, courses, leadership programs and graduate programs, are accessible to employees through the Applicant's Opal HealthCare Academy;
(d) one employee raised concerns that the Opal Agreement does not provide further pay increases and does not contain a team leader allowance. The Applicant's preservation proposal includes conferring the future 3% wage increase under the Sunnymeade Nurses Agreement and retaining the team leader allowance for a duration that the Applicant submits is reasonable in the circumstances, notwithstanding team leaders are not a part of the Applicant's roster structure and therefore the allowance does not have existing or foreseeable application; and
(e) one employee raised concerns that the Opal Agreement does not contain an equivalent special duties allowance. The Applicant notes that this is a contingent entitlement for Assistants in Nursing and the conditions for payment do not arise in respect to the transferring employees.
[60] The Applicant submits that the Commission can be satisfied that transferring employees have been afforded a reasonable opportunity to express their views about the Application.
[61] The Applicant says most transferring employees have indicated support for the Application. A small number of transferring employees expressed concerns, and the Applicant considers that these concerns, where they relate to the level of conditions/entitlements between the two industrial instruments, will have been appropriately addressed and remedied by the preservation arrangements that have been proffered by the Applicant.
[62] Mr Hunter was asked about the Comparison Document not being provided to employees. He accepted that other than being told, he had no way of knowing if the Comparison Document was provided to employees.
[63] Mr Hunter was referred to an email dated 13 February 2026 advising that the Comparison Document referred to in the Consent Form and information sessions is yet to be provided. Mr Hunter accepted it was possible employees did not have the Comparison Document at the time of the information sessions. He said he knew that the Comparison Document was ready as of 21 January 2026 ahead of the planned information sessions on 27, 28, and 29 January 2026. Mr Hunter said it was confirmed to him that the Comparison Document had been printed and distributed on 16 February 2026.
[64] Mr Hunter said the Comparison Documents were referenced in the information sessions, and throughout that period no individual raised a concern about being able to access the documents to form their view. Mr Hunter said there was no intention of withholding the Comparison Document, and it should have gone with the initial email with the other documents.
[65] It was agreed Ms Woodcroft was the primary source of explanation to employees; however other representatives were also involved. It was put to Mr Hunter that Ms Woodcraft would have been the best witness to respond to the ANMF concern that staff felt pressured to sign the Consent Forms. Mr Hunter said this issue was raised by Ms Trevascus in an email to him on 19 February and he responded promptly to ask the ANMF for information so the allegation could be investigated and there was no further information provided. He said no allegations were presented to him.
[66] Ms Trevascus, during her oral evidence, accepted the commentary in the final column in the Opal Health Agreement analysis document attached to her statement, was her own assessment. Ms Trevascus accepted the ANMF survey that was conducted over 12 days and over that time the ANMF received 26 responses out of 165 employees. Ms Trevascus said the survey was only sent to its members. The evidence was that 80% of the employees who responded to the ANMF survey indicated they did not want to be covered by the Opal Agreement. It was accepted that just under 20% of employees who responded did not provide a categorical answer either way.
[67] Ms Trevascus accepted that the response to the survey was not based on the revised position as of today. Ms Trevascus agreed the information was based on information as at a month prior to the hearing. The ANMF argued that the Applicant adopted a deliberate strategy of seeking to limit the access of employees to the Comparison Document.
[68] It seems more likely than not, from the evidence provided, that the employees did not have direct access to the Comparison Document at the time they were completing the Consent Forms which were due by 6 February. Given that it seems that employees did not have available to them a comprehensive Comparison Document at the time Consent Forms were being completed, this undermines the ability for the Commission to reliably accept the Consent Forms as a genuine representation of the views of employees.
[69] It is unfortunate that the Comparison Document was not made available sooner and more widely as Mr Hunter explained was the intention. The employees were provided with copies of both enterprise agreements, and the Applicant did notify the ANMF early in the process about its intentions to make this application.
[70] I have weighed up the evidence, but I am not persuaded that employees were subjected to pressure from the Applicant to sign the Consent Forms. Some employees may have formed that subjective view, however it is not borne out by the evidence, and I place no weight on that specific allegation. The ANMF called no direct witness evidence in relation to this matter. I do not draw a Jones v Dunkell inference against the Applicant for not calling Ms Woodcroft.
[71] Despite a clear majority of employees having completed Consent Forms indicating they did not oppose this application, the evidence does support the conclusion that employees were not fully informed at the time they completed the Consent Forms, because they did not have access to the Comparison Document. That fact, taken in combination with a different picture emerging from the ANMF survey conducted amongst a smaller group, leads me to conclude it is appropriate to regard the consideration of the views of employees as a neutral matter.
Whether any employee would be disadvantaged by the order in relation to their terms and conditions of employment
[72] The Applicant submits that it has undertaken a detailed comparison of employment conditions and entitlements between the Sunnymeade Nurses Agreement and the Opal Agreement and that based on this comparison, the Applicant submits that while there are conditions conferred by the Sunnymeade Nurses Agreement that are either more beneficial than comparable conditions under the Opal Agreement or not otherwise conferred by the Opal Agreement, there are a significant number of equal and more superior conditions under the Sunnymeade Nurses Agreement, and taking into consideration the Applicant's commitments set out above, transferring employees will be better off overall under the Opal Agreement.
(a) access to leave entitlements not conferred under the Sunnymeade Nurses Agreement, such as primary carer leave, partner leave, the primary carer leave, return to work incentive payment and gender affirmation leave;
(b) superior paid leave entitlements to family and domestic violence leave (for full- time and part-time employees), emergency services leave, ceremonial leave and workplace delegate training leave;
(c) a lower hours of experience requirement for part-time and casual employees for pay point progression purposes;
(d) no cap on the amount of annual leave that attracts payment of the 17.5% leave loading;
(e) a more beneficial application of shift work penalties in relation to early morning and afternoon shifts;
(f) a higher minimum engagement for casual employees (the Applicant notes that in respect to the transferring employees, none are presently engaged on a casual basis); and
(g) a superior pay scale for redundancy payments.
(a) for transferring employees who transfer to the Applicant as at the transfer date, the Applicant will from the transfer date, preserve for the stated period of time the following (more beneficial) entitlements under the Sunnymeade Nurses Agreement:
(b) for transferring employees who transfer to the Applicant as at the transfer date, the Applicant will, for the life of their employment with the Applicant, preserve the more beneficial travel allowance entitlement under the Sunnymeade Nurses Agreement of $1.11 per kilometre where a transferring employee is required and authorised to use their own motor vehicle in the course of their duties;
(c) for transferring employees who transfer to the Applicant as at the transfer date, the Applicant will, for the period of six months commencing from the transfer date, preserve the entitlement under the Sunnymeade Nurses Agreement of payment of a laundry allowance of $0.52 per shift (or part thereof on duty) where the uniform required to be worn by the transferring employee is not laundered by or at the expense of the Applicant;
(d) where there is a direct translation in classification from one enterprise agreement to the other and the transferring employee's current base rate of pay is higher than the rate of pay for the equivalent classification under the Opal Agreement, the Applicant will preserve the transferring employee's current base rate of pay until such time as the Opal Agreement base rate of pay for the equivalent classification is equal to or in excess of the employee's current base rate, at which point the transferring employee's base rate will be adjusted to align with the relevant base rate under the Opal Agreement. Accordingly, there will be no reduction in the base rate of pay of the transferring employees when they commence employment with the Applicant; and
(e) the Applicant will recognise the accrued personal/carer's leave, accrued annual leave and service with the old employer of the transferring employees for the purposes of service-related entitlements under the Opal Agreement.
[74] The ANMF submits that the rates of pay for almost all classifications and pay points are lower under the Opal Agreement than under the Sunnymeade Nurses Agreement. For Assistants in Nursing the rates are up to 4.44% lower, for Enrolled Nurses up to 5.56% lower and for Registered Nurses, up to 6.17% lower. The only transferring employees who would receive a higher base rate of pay if they were covered by the Opal Agreement are entry level Enrolled Nurses and Registered Nurses with more than 4 years and 4,800 hours of experience.
[75] The ANMF notes that the Applicant has committed to preserving the higher rates of pay for transferring employees.
[76] The ANMF submits that if the order sought is made by the Commission, the transferring employees would suffer significant disadvantage in the following ways:
[77] The ANMF has placed emphasis on job security clauses that will be lost if the orders are granted. The first of those pertains to clause Subclause 15.2(b)(iii) of the Sunnymeade Agreement reads as follows:
"(iii) The Employer is committed to maintaining the employment security of the Enrolled Nurses who are employed at the date of approval of this Agreement. In line with this commitment, the Employer will not seek to impose redundancies, role changes or reductions in hours for Enrolled Nurses, except in circumstances where reduced resident numbers necessitate reductions in hours across all staff classifications."
[78] The ANMF also drew specific attention to clause 8.6 which reads as follows:
The parties are committed to delivering an aged care service that aligns with industry best practice and that maintains safe systems of work for the benefit of all staff and residents.
The Employer will meet the Government-mandated minimum staff time requirements from its date of implementation. Wherever possible, existing employees will be offered any additional hours that may become available because of the minimum time requirements on a permanent basis to promote meaningful job security."
[79] The ANMF submits the Applicant has refused to provide an undertaking in relation to subclause 15.2(b)(iii) or 8.6 which it could easily do at least until the expiration of the current Sunnymeade Agreement, and the loss of these protections are a significant disadvantage to nurses that are not offset by any claimed advantages.
[80] The Applicant submits in reply that the totality of its additional commitments for the transferring employees largely ameliorate the material disadvantage for the transferring employees that has been foreshadowed by the ANMF should the Opal Agreement cover their employment in place of the Sunnymeade Nurses Agreement.
[81] Whilst the Applicant acknowledges that there remain discrete differences in certain terms, conditions, and entitlements between both industrial instruments that could give rise to a possibility of disadvantage for transferring employees, the Applicant submits that they are contingent entitlements and therefore minimal weight should be placed on their omission.
[82] Accordingly, the Applicant submits that its commitments, coupled with the more beneficial terms and conditions of employment under the Opal Agreement, enable the Commission to be satisfied that, on an overall basis the transferring employees will not be disadvantaged by the proposed orders in relation to their terms and conditions of employment and that the consideration in s.318(3)(b) weighs in favour of granting the Application.
[83] Mr Hunter was taken to the comparison document prepared by the Applicant. Mr Hunter was asked about the loss of the 3% increase in pay that would not be applicable if the Order was granted in the context of the explanation given to employees.
[84] Mr Hunter said it was explained to employees at the time that the Applicant intended to negotiate a new enterprise agreement, and an intention to have a wage increase from 1 July 2026. Mr Hunter accepted that the commitment to undertake to preserve the 3% wage increase in the Sunnymeade Agreement from 1 July 2026 did not come until after the information sessions.
[85] The matter of disadvantage must be assessed on an overall basis. The Applicant submits for several of the disadvantages referred to by the ANMF they have no application or have minimal overall impact. The Applicant relies on several more beneficial entitlements under the Opal Agreement.
[86] Further the Respondent points to maintaining rates under the Sunnymeade Agreement, and also for a small group translating at a higher rate to the Opal Agreement. The Applicant also relies on those more beneficial conditions in combination with its undertakings including the undertaking to review contracted hours for part time staff to facilitate an increase in their contracted hours to reflect employees' hours regularly worked.
[87] The Applicant emphasises this will crystalise the hours employees are regularly working and safeguard the hours of work by that condition being offered by the Applicant to employees to vary their contracts of employment to increase their minimum hours of work going forward.
[88] The Applicant submits it offered employment to all the transferring employees employed as Enrolled Nurses for the same role and the same contracted hours, and that offer will be strengthened by the Applicant's hours of work review for part time employees.
[89] The Applicant submitted it has no intention currently or in the future to make Enrolled Nurses redundant or reduce their hours, however subclause 15.2(b)(iii) significantly constrains the Applicant's ability to operate the facility in accordance with the Applicant's needs and requirements and the model of care it adopts and applies at its other eighteen aged care facilities in Queensland.
[90] It is notable that the Applicant made offers to all the enrolled nurses employed by the old employer and states it has no plans to make any enrolled nurses redundant. Further its undertaking to consolidate regular hours as minimum hours will enhance the security of hours of work.
[91] Whilst the number of enrolled nurses is relatively small when viewed against the entire group of 165, the loss of the protection of subclause 15.2(b)(iii) for this group is a disadvantage for that group which weighs against granting the order.
[92] The issue about clause 8.6 in my view carries somewhat less weight. The Applicant submitted the number of mandated care minutes is regulated by the Aged Care Quality and Safety Commission empowered to monitor and enforce compliance. The Applicant submitted it owes obligations to comply with the requirements mandated by the Commission through required minimum staffing and care minutes, and the legislation appropriately enshrined and maintains ongoing compliance.
[93] It appears from the evidence and submissions regarding clause 10.3(g) of the Sunnymeade Agreement, which is a clause entitling employees to have their regular hours reviewed, was not used by the old employer because the previous employer was not called upon to conduct reviews of hours worked under this clause. The ANMF referred to the loss of this clause as another example of disadvantage.
[94] Mr Hunter gave evidence that the Applicant did not receive from the old employer information relevant to the operation of this clause. The Applicant's undertaking in relation to offering variations to part time employees' minimum contractual hours based on their hours of work, is a sensible way to deal with this issue. The evidence overall indicates that disadvantage to employees has largely been ameliorated by the undertakings given, and there are some more beneficial terms under the Opal Agreement. The issue in relation to job security afforded for enrolled nurses is not addressed and for this discrete group this a factor weighing against the granting of the orders.
If the order relates to an enterprise agreement-the nominal expiry date of the agreement
[95] The nominal expiry date of the Sunnymeade Nurses Agreement is 30 June 2027.
[96] The nominal expiry date of the Opal Agreement is 30 June 2026.
[97] The Applicant submits the Opal Agreement was a product of negotiations between the Applicant and the relevant union employee organisations (the Australian Nursing and Midwifery Federation QNMU Branch, the Australian Workers' Union, the Health Services Union NSW/ACT/QLD Branch and the United Workers Union) which resulted in fit-for-purpose terms and conditions being agreed upon between the parties.
[98] The ANMF submits that while this is correct, it is relevant to note that the Transferring Employees were not a party to the negotiations for the Opal Agreement. The Transferring Employees were actively involved in negotiating the terms of the Sunnymeade Agreement, along with the ANMF. The fact that the Agreement negotiated by the Transferring Employees to apply to their employment will operate for a further year beyond the nominal expiry date of the Opal Agreement weighs against the granting of the orders sought by the Applicant.
[99] The Applicant notes that transferring employees will be able to bargain for a new enterprise agreement within a shorter period, should the Orders be granted, owing to the immediacy of the nominal expiry date of the Opal Agreement. The Applicant submits this weighs in favour of the Application being granted.
[100] The Applicant submits that in the intervening period, and per the Applicant's commitments, the transferring employees retain the benefit of the further and final wage increase under the Sunnymeade Nurses Agreement. Furthermore, the preservation arrangements proposed to be implemented by the Applicant ensure the continued application of key more beneficial entitlements under the Sunnymeade Nurses Agreement for the transferring employees for a continuous period of up to 16 months to 30 June 2027 from the transfer date, 2 March 2026.
[101] The fact that the Opal Agreement expires a year before the Sunnymeade Agreement is a factor weighing against the application, however I note that the undertakings preserve many conditions until the nominal expiry date of the Sunnymeade Agreement and the fact that it seems likely negotiations will commence shortly for a new Opal Agreement are also factors which reduce the extent of the weight this consideration carries as a reason to refuse the application.
Whether the Agreement would have a negative impact on the productivity of the new employer's workplace
[102] The Applicant submits that if the Order is not granted, there will be a negative impact to the Applicant's productivity. Having employees of the same cohort covered by two different enterprise agreements which provide for different entitlements may lead to dissatisfaction amongst employees. The transferring employees may be required to undertake similar or identical duties side-by-side with the Applicant's existing (non-transferring) employees, whilst receiving different and, in some cases, lesser entitlements.
[103] The Applicant considers that applying varying conditions to employees who perform identical work will not promote a cohesive, equitable and inclusive work culture, but rather this has the potential to result in division and negatively impact morale. In turn, productivity will be negatively impacted, which has a direct impact on the quality of care and services provided to residents.
[104] The ANMF notes that most transferring employees are currently paid a higher base rate of pay than the rate that would apply to them under the Opal Agreement. The Applicant has committed to maintaining this higher rate of pay if the Commission makes the order sought. As such, the Applicant would face the problem of having employees who are performing the same work being paid varying rates of pay, whether or not the order is granted.
[105] The ANMF contends that employee morale, and therefore the Applicant's productivity, is more likely to be negatively affected if employees suffer the disadvantages to their terms and conditions of employment, outlined in its submissions, that will result were the orders sought granted by the Commission.
[106] The Applicant submits in reply that having all of its employees across its 19 care communities in Queensland covered by the same enterprise agreement will deliver efficiency and accurate and consistent HR and payroll services, enable administrative simplicity, promote organisational consistency and allow for internal equity as to the terms and conditions of employment.
[107] The Applicant submits that this consideration weighs in favour of granting the Application.
[108] The ANMF submission that if the orders were to be granted, there would still be differences in the conditions applying is correct. This is so because of the undertakings the Applicant is offering to retain certain more beneficial entitlements for transferring employees for a limited time.
[109] Considered overall however, the extent of the variation in conditions between transferring and non-transferring employees would be reduced if the order were granted as there would be one enterprise agreement applying and not two. The consideration in s.318(3)(d) favours the granting of the application.
Whether the new employer would incur significant economic disadvantage because of the transferable instrument covering the new employer
[110] The Applicant submits that the potential economic disadvantage flowing from the requirement to administer multiple and different industrial instruments within the workplace in respect of employees who perform the same (or identical) work, especially within the same location, will be burdensome.
[111] Should it be required to apply varying sets of conditions to its employees, the Applicant submits that it will be subject to increased administrative costs and associated burdens. Specifically, the payroll system in its current form would not be able to accommodate the differences in pay and conditions without reverting to manual processing for a select group of employees. As a result, additional resourcing would be required in order to apply two sets of pay rules for employees performing the same work, and to process and reconcile payments.
[112] The ANMF contends that the Applicant does not claim in its submissions that applying the Sunnymeade Nurses Agreement to the transferring employees would result in it suffering 'significant economic disadvantage'.
[113] The ANMF submits that the Applicant is a very large enterprise, managing 145 Residential Aged Care Communities across New South Wales, Victoria, Queensland, Western Australia, and South Australia and that the Applicant is covered by at least four different in-term Enterprise Agreements.
[114] The ANMF submits that the Applicant's submissions that the "potential economic disadvantage... will be burdensome" and that "additional resourcing would be required..." is not relevant to the mandatory consideration at s.318(3)(e) because there is no suggestion that such disadvantage is significant in the context of the scale of the Applicant's enterprise.
[115] The Applicant submits in reply that there are various areas where the Applicant will, through its proposal, suffer economic disadvantage as a result of continuing to apply certain more beneficial conditions of the Sunnymeade Nurses Agreement in comparison to the Opal Agreement.
[116] The Applicant submits that it has committed, subject to the Orders being made, to take on the economic disadvantage associated with the ongoing recognition of these conditions at substantial cost to the business, for the benefit of the transferring employees.
[117] The Applicant submits that the consideration in s.318(3)(e) of the Act weighs in favour of granting the Application. If the Commission is not satisfied that the Applicant would incur significant economic disadvantage, it is submitted in the alternative that this factor is neutral in the consideration of whether the Orders sought should be made.
[118] I have concluded the appropriate course is to treat the consideration in s.318(3)(e) as neutral.
The degree of business synergy between the transferable instrument (Agreement) and any workplace instrument that already covers the new employer
[119] The Applicant submits that whilst both agreements have been assessed by the Commission as being better off overall in comparison to the otherwise applicable Awards, there is not a high degree of business synergy between the agreements. The Applicant puts forth that notwithstanding both instruments involve employees performing the same work or substantially the same work, having differences in the entitlements between employees at a site and the administration of such, affects the business synergy.
[120] The Applicant further contends that there are ample points of difference between the instruments, such that greater business synergy arises from the application of the Opal Agreement to the transferring employees. Ensuring that the transferring employees are covered by the Opal Agreement will allow for consistency across the Applicant's nursing workforce in Queensland. In other words, it would be incongruous for there to be a select group of employees of the new employer (i.e., the transferring employees) who would be covered by the Sunnymeade Nurses Agreement rather than the Opal Agreement.
[121] The Applicant submits that the consideration in s.318(3)(f) of the Act weighs in favour of granting the Application.
[122] The ANMF does not agree that there is "little business synergy" between the Opal Agreement and the Sunnymeade Nurses Agreement. The ANMF submits that both Agreements are underpinned by the Nurses Award 2020 and the Aged Care Award 2010 and provide for the same kinds of work to be carried out by the same kinds of employee.
[123] The Applicant submitted that enrolled nurses job security subclause 15.2(b)(iii) applies to enrolled nurses who were employed at the time the Sunnymeade Agreement at the date of the approval of that Agreement which was December 2024.
[124] The Applicant submitted this subclause unequivocally demonstrates the lack of synergy between the two instruments. The Applicant submitted that it understands the position that the clause provides job security for enrolled nurses, however in relation to business synergy it is based on a model adopted by a previous employer, and it inhibits the Applicant's ability to make operational changes including for reasons outside of its control that may impact upon that cohort.
[125] If the Applicant is required to continue to administer the application of two separate enterprise agreements to its nursing workforce that will have a negative impact on the productivity of the Applicant and additional resources will be needed to meet that burden.
[126] The Applicant submits the relevant clause was agreed to by the old employer who was a single stand-alone employer in consideration of its operations and how it functioned.
[127] It is apparent from the material before the Commission that the Sunnymeade Agreement and the Opal Agreement are significantly different in many respects and this favours the granting of the orders as there is a lack of synergy between the two instruments because they are different in many respects.
[128] The public interest requires a consideration of the balance between the protection of employees' terms and conditions of employment under enterprise agreements, with the interests of employers in running their enterprise efficiently.
[129] The ANMF submits that there is public interest in ensuring that employees are not disadvantaged during a transfer of employment. The ANMF notes that the public interest is also in ensuring that the objects of the Act are maintained, in particular, the object of "achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining...". The transferring employees participated in the enterprise bargaining process and negotiated the terms of the Sunnymeade Nurses Agreement. Therefore, the ANMF submits that it is not in the public interest for these employees to suffer disadvantage by being covered by an Agreement other than the one they negotiated, particularly as their Agreement is yet to pass its nominal expiry date.
[130] The Applicant submits that the preservation arrangements it has proffered which maintain the continued application of key more beneficial elements of the Sunnymeade Nurses Agreement, coupled with the terms, conditions and entitlements under the Opal Agreement, deliver an appropriate protection of the transferring employees' terms and conditions of employment and the Applicant's interests in the efficient running of its residential aged care operations in Queensland weighing in favour of the granting of the Orders sought.
[131] In determining applications of this nature, the Commission is required to strike a balance between the protections of employee's conditions of employment, and the interests of employers in seeking to operate their business efficiently.
[132] The Applicant operates nineteen facilities across Queensland and being a business that has operated in the aged care industry for a reasonable period has developed its own model for providing care.
[133] Having two different enterprise agreements with quite different sets of pay and conditions applying to employees working alongside each other and performing the same work will inevitably undermine business synergy.
[134] The Applicant has moved a considerable way to accommodate concerns raised by the ANMF since the filing of the initial application by offering an extensive list of undertakings to preserve certain more beneficial conditions in the Sunnymeade Nurses Agreement.
[135] The employer supports the application. For reasons already stated I have determined to treat the employee views as neutral consideration. I am cognisant that the evidence obtained concerning employee views was obtained by both the Applicant and the ANMF prior to the more beneficial position for employees that is now before the Commission given the range of extensive undertakings offered.
[136] I accept the submission of the Applicant that the two nursing enterprise agreements have many differences as is highlighted by the evidence. Business synergy will be enhanced by the workforce both at the Facility itself, and the Applicant's workforce at its other 18 aged care facilities, operating under the one agreement. Business synergy will be undermined if the application is refused.
[137] The ANMF emphasises that conditions that the Applicant has undertaken to preserve until 30 June 2027, may, if the order is refused, also continue to apply beyond that date. There is inevitably a requirement to speculate about this issue as the Applicant has foreshadowed its intention to seek to negotiate a new enterprise agreement for all its nursing staff including at the other 18 facilities soon, as the current Opal Agreement expires in approximately three months' time.
[138] The ANMF submits that the employees who have transferred, negotiated with their old employer conditions in their current Agreement and they should be entitled to enjoy the benefits of the conditions won for at the least the life of that Agreement.
[139] It appears to be the case there is a total of 26 enrolled nurses at the time of the hearing employed by the Applicant, out of a total of 165 employees covered, however the number of 26 may not reflect the number of enrolled nurses who were employed as of December 2024 and therefore are entitled to the protection of Subclause 15.2(b)(iii) as there may have been some turnover of staff.
[140] The ANMF submitted none of the beneficial terms in the Opal Agreement would outweigh the loss of the job security provision.
[141] In deciding whether to make the orders sought, I have taken into account all the matters I am required to consider under s.318(3) including the public interest.
[142] I have reached the conclusion that taking into account the extensive undertakings offered by the Applicant in combination with some more beneficial terms that will flow to employees from the Opal Agreement, in combination with the lack of synergy between the two instruments, when weighed against the disadvantages, particularly in relation to Subclause 15.2(b)(iii), the balance, though fine, is in favour of granting the order.
[143] The arguments against making the order, including the extent of disadvantage that remains in relation to a particular subset of employees has been taken into account. The undertakings largely ameliorate issues in relation to the potential for disadvantage, and some employees will see an improvement overall. The potential for disadvantage has not been entirely extinguished for every category of employee.
The arguments when all weighed together in this case, taking into account the conclusions set out above in relation to each of the matters required to be taken into account, favour granting the order. Granting the order in this case is the more practical and sensible outcome when compared to the alternative, and will allow for the business to achieve efficiency, consistency, and synergy across its operations moving forward. The undertakings offered by the Applicant are accepted and are appended to this decision. The application is granted. An order will be issued separately and concurrently with this decision to have effect from today's date.
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