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[2026] FWC 985
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 Support Staff Enterprise Agreement 2024 (Sunnymeade Support Staff Agreement) will not cover the Applicant or any transferring employees as defined in Part 2-8 of the Act, being employees of Applicant who were formerly employed by Jomal Pty Ltd (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] 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.
[4] The old employer employed non-nursing aged care employees at the Facility who are covered by the Sunnymeade Support Staff Agreement. The Applicant has offered employment to 49 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.
[5] The Applicant, therefore, is the new employer, for the purposes of s.311(1) of the Act.
[6] The work that the transferring employees will perform for the Applicant will be the same or substantially the same as the work that they performed for the old employer. Specifically, personal care, diversional therapy and environmental services to facilitate the running of the Facility and provide residential aged care services to the Facility's residents.
[7] 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.
[8] Accordingly, pursuant to s.311(1) of the Act, there has been a transfer of business.
[9] The Sunnymeade Support Staff Agreement presently covers the transferring employees.
[10] 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 the Applicant is covered by the Sunnymeade Support Staff Agreement in relation to the transferring employees, subject to s.318(1) of the Act.
[11] The Applicant seeks an Order pursuant to s.318(1) of the Act that the enterprise agreement that currently covers its other existing employees in Queensland, also covers the transferring employees. That enterprise agreement is the Opal Agreement.
[12] On 26 February 2026, the matter was listed for a Directions Hearing.
[13] Following the Directions Hearing, a Notice of Listing and Directions were issued to the relevant parties with a tentative date set for a further Hearing on 24 March 2026.
[14] On 6 March 2026, the Health Services Union NSW/ ACT/ QLD Branch (the HSU) emailed my chambers stating that:
"After consultation with local organisers the HSU does not have any views to share with the Commission at this time."
[15] On 9 March 2026, the Australian Workers' Union Queensland Branch (AWU) filed their outline of submissions.
[16] On the same day, the United Workers Union Queensland Branch (UWU) emailed my chambers stating that they supported the submissions of the AWU, did not support the orders being granted, and wished to make a singular submission:
"UWU would like to make the sole submission that it is aware of employees who regularly work 60+ hours per fortnight at the Sunnymeade site, where their contracted hours are specified as 16 hours per fortnight. Under clause 10.3(b) of the Sunnymeade Support Staff Enterprise Agreement 2024, these employees have not had their reviews of the hours worked in the preceding six month period to determine whether their minimum contracted hours are to be increased. UWU is concerned that this review provision will not prevail in the event of the Sunnymeade EBA not being transferred, running the risk of employees having their shifts reduced to the minimum contracted 16 hours per fortnight."
[17] 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):
(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. The new employer"
[18] 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.
[19] 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.
[20] 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.
[21] 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 its 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.
[22] 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.
[23] On 8 January 2026, the Applicant informed the AWU, the HSU, and the UWU (the Unions) 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.
[24] 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.
[25] 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.
[26] On 27 January 2026, transferring employees were provided with copies of the following documents:
[27] 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 Support Staff Agreement, and the Consent Form.
[28] On 13 February 2026, hard copies of the Comparison Document were again 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.
[29] 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.
[30] All 49 transferring employees returned the Consent Form to the Applicant, of which:
[31] The AWU initially submitted that it held concerns that the information provided by the Applicant to the transferring employees who would be affected by the Order was potentially misleading.
[32] The AWU submitted that the memo distributed to the transferring employees on 8 January 2026 contained a list of anticipated questions regarding the transition process and employee entitlements which stated the following response to the question 'When will we receive our annual pay increase?':
"Under the Opal HealthCare EA, pay rates are review in July each year. We'll provide further information closer to the time."
[33] The AWU asserted that this response was contrary to the detailed table comparing conditions and entitlement under the two enterprise agreements in questions, as provided by the Applicant to the transferring employee on 27 January 2026.
[34] The AWU submitted that given critical information about future wage increases was not included in the 'Consent Form', including that the wage increase of 3% per annum payable under the Sunnymeade Support Staff Agreement would not apply should these orders be granted, that the Commission ought to give little weight to the submissions of the Applicant that the majority of transferring employees had no concerns about the Opal Agreement applying to their employment, asserting that it is clear this had not been properly explained to the transferring employees.
[35] The Applicant submitted in response that the Commission can be satisfied that transferring employees have been afforded a reasonable opportunity to express their views about the Application.
[36] The Applicant states that the substantial majority of 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.
[37] The Applicant's proposed preservation arrangements 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 Support Staff Agreement;
(b) maintaining the continued payment (where applicable) of the laundry allowance under the Sunnymeade Support Staff Agreement, and applying the 3% increase to this allowance per the terms of the Sunnymeade Support Staff Agreement;
(c) maintaining the higher travel allowance under the Sunnymeade Support Staff Agreement, and applying the 3% increase to these allowances per the terms of the Sunnymeade Support Staff Agreement;
(d) adopting the more beneficial paid rest break entitlements under the Sunnymeade Support Staff Agreement;
(e) preserving the superior annual leave and long service leave accrual rates under the Sunnymeade Support Staff Agreement; and
(f) enabling early access to long service leave after completion of seven years' continuous service.
[38] 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) 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.
[39] On 20 March 2026, the AWU emailed my chambers stating that having considered the Applicant's revised proposal as detailed above the AWU no longer pressed its opposition to the Application. Accordingly, the AWU did not consider that there was any utility in the matter proceeding to a hearing.
[40] On 23 March 2026, the Applicant noted that if the UWU had also changed its position in light of consideration of the Applicant's revised proposal that it also did not consider there to be any utility in the matter proceeding to a hearing.
[41] On 23 March 2026, the UWU confirmed its own objections were no longer pressed.
[42] Upon receipt of these responses the Hearing was vacated, and I have proceeded to deal with the matter on the papers. Based on the material before the Commission, I am satisfied that the view of employees favours the granting of the application.
Whether any employee would be disadvantaged by the order in relation to their terms and conditions of employment
[43] The Applicant submits that it has undertaken a detailed comparison of employment conditions and entitlements between the Sunnymeade Support Staff Agreement and the Opal Agreement.
[44] Based on the Comparison Document, the Applicant submits that while there are conditions conferred by the Sunnymeade Support Staff 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 Opal Agreement and taking into consideration the Applicant's commitments, transferring employees will be better off overall under the Opal Agreement.
[45] The Applicant submits that the superior conditions include:
(a) for transferring employees who transfer to the Applicant as at the transfer date, the Applicant will, for the period of 12 months commencing from the transfer date, or for the period commencing from the transfer date and ending on the date of operation of a new enterprise agreement that is approved by the Commission which replaces the Opal Agreement and applies to the transferring employees, whichever is the earlier, preserve the following (more beneficial) entitlements under the Sunnymeade Support Staff 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 Support Staff Agreement of $1.14 per kilometre were 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 Support Staff 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.
[47] The Applicant's undertakings as attached this decision result in a totality of commitments that largely ameliorates the material disadvantage for the transferring employees.
[48] I am satisfied the Applicant's undertakings, 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.
If the order relates to an enterprise agreement-the nominal expiry date of the agreement
[49] The nominal expiry date of the Sunnymeade Support Staff Agreement is 30 June 2027.
[50] The nominal expiry date of the Opal Agreement is 30 June 2026.
[51] The Applicant submits that 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 AWU, the HSU, and the UWU) which resulted in fit-for-purpose terms and conditions being agreed upon between the parties.
[52] The Applicant submits that the transferring employees will be in a position 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 that this weighs in favour of the Application being granted.
[53] 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 Support Staff Agreement to base rates of pay under that instrument. Furthermore, the preservation arrangements proposed to be implemented by the Applicant ensure the continued application of key more beneficial entitlements under the Sunnymeade Support Staff 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.
Whether the Agreement would have a negative impact on the productivity of the new employer's workplace
[54] The Applicant submits that if the Order is not granted, there will be a negative impact to the Applicant's productivity.
[55] The Applicant submits that 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.
[56] 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.
[57] The Applicant submits 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.
[58] I am satisfied on the basis of the material before the Commission that this consideration weighs in favour of granting the Application.
Whether the new employer would incur significant economic disadvantage because of the transferable instrument covering the new employer
[59] 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.
[60] 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 to apply two sets of pay rules for employees performing the same work, and to process and reconcile payments.
[61] In contrast, there are practical consequences that flow should the Order be granted, which will benefit both the Applicant and the transferring employees.
[62] I am satisfied that the consideration in s.318(3)(e) of the Act weighs in favour of granting the application.
The degree of business synergy between the transferable instrument (Agreement) and any workplace instrument that already covers the new employer
[63] The Applicant submits that there is little business synergy between the Sunnymeade Support Staff Agreement in comparison to the Opal Agreement.
[64] 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 non-nursing aged care employee 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 Support Staff Agreement rather than the Opal Agreement.
[65] The Applicant contends 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. There are several differences in terms, conditions, and entitlements between the two industrial instruments.
[66] The Applicant submits 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 aged care workforce in Queensland. The Applicant notes that it has committed to preserving a range of more beneficial entitlements under the Sunnymeade Support Staff Agreement for the transferring employees. It will alleviate the incongruity and unreasonable level of inconsistency that will arise in the event there is to be a select group of the Applicant's employees, the transferring employees, in one of its 19 care communities in Queensland who are covered by the Sunnymeade Support Staff Agreement rather than the Opal Agreement.
[67] I am satisfied that the consideration in s.318(3)(f) of the Act weighs in favour of granting the Application.
[68] The Applicant submits that the public interest is not agitated by the application.
[69] The Applicant submits that the preservation arrangements it has proffered which maintain the continued application of key more beneficial elements of the Sunnymeade Support Staff 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.
[70] The Applicant submits this matter weighs in favour of the granting of the Orders sought.
[71] Having considered each of the matters I am required to consider, including the signed undertaking offered by the Applicant I have determined to grant the Orders sought. The undertakings are accepted and are attached to this decision. An Order will be issued separately and concurrently with this decision to have effect from today's date.
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