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

Estia Investments Pty Limited Trading AS Estia Health

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

• [1] An Application has been made by Estia Investments Pty Limited (Estia) to the Fair Work Commission for an order pursuant to s 318 of the Fair Work Act 2009 (the Act) seeking that the Allity Enterprise Agreement (Queensland) 2019 (the Allity Agreement) not cover particular transferring employees who will transfer their employment to Estia in respect of whom the Allity Agreement applies, and further, that the Estia Health Queensland Enterprise Agreement 2024 (the Estia Agreement) cover any such transferring employees.
• [2] The Application was filed on 15 September 2025. On 22 September 2025 Estia filed an Outline of Submissions and an Affidavit of Nicholas Gold (Head of Industrial Relations and Employee Relations at Estia) and relies on those materials in support of the Application.
• [3] The Allity Agreement covers the Australian Nursing and Midwifery Federation (ANMF) and the Australian Workers' Union (AWU). Estia has also sought to keep the Queensland Nurses and Midwives' Federation (QNMU) and the United Workers' Union (UWU) informed about the Application.
• [4] On 23 September 2025, I made Directions in this matter requiring Estia to serve upon the ANMF, the AWU, the QNMU and UWU (the Unions) a copy of the Application, the Outline of Submissions and Mr Gold's Affidavit. A copy of my Directions were also required to be served on the Unions which provided that if any of the Unions sought to file submissions or other materials in relation to the Application, they were to advise my chambers of such by 4:00PM on 30 September 2025, and do so by 3 October 2025.
• [5] On 23 September 2025, my chambers was copied into correspondence sent by Estia to the Unions containing the information I directed to be served.
• [6] The QNMU and ANMF advised 25 September 2025 they had no objection to the Application and would not be filing submissions. Nothing was received from either of the other two Unions.

• [7] In short, the Application concerns a series of transactions through which Estia acquired a Queensland residential aged care portfolio in September 2025.
• [8] The portfolio concerns the following facilities:
  1. Casa D'amore
  2. Esida
  3. Lorocco
  4. Marebello
  5. Portofino Hamilton
  6. Sylvan Woods
  7. a newly constructed (as yet unoccupied) residential aged care facility at the Sorrento Property

• [9] Some of the employees of entities that are part of the acquisition and who work at the facilities are covered by existing enterprise agreements and some are not.

• [10] Some of the employees who work at the facilities are covered by the Allity Agreement. Six of the employees are covered by the Allity Agreement have been made offers of employment with Estia, and if those offers are accepted, their employment will commence on the date of the completion of the transaction associated with the acquisition, likely on 20 October 2025.
• [11] The Application seeks an Order intended to apply in respect of transferring employees to which the Allity Agreement applies, who work at any of the facilities, and whose employment is to be transferred to Estia. These are the employees to whom the Order I intend to make in respect to the Application applies and are described in this decision in the Order I intended to make as the relevant employees.

• [12] Section 318 of the Act provides as follows:

318 Orders relating to instruments covering new employer and transferring employees

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement - an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award - an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

(3) In deciding whether to make the order, the FWC must take into account the following:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement - the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

• [13] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, as set out in the Form F40 and the submissions, all of the elements of s 311(1) of the Act have been met and therefore, a transfer of business has occurred within the meaning of the Act.
• [14] Section 312 of the Act details instruments that may transfer:

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(2) Each of the following is a named employer award:

(a) a modern award (including a modern enterprise award) that is expressed to cover one or more named employers;

(b) a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises as described in paragraph 168A(2)(b)).

• [15] The Estia Agreement was approved by the Commission on 3 February 2025 and pursuant to s 312(1) of the Act is a transferrable instrument.

• [16] The application has been made by Estia, the new employer. The requirement under s 318(2) has therefore been met.

Section 318(3) - Matters that the FWC must take into account

• [17] The grounds relied on by Estia which are set out in the application are outlined below.

Section 318(3)(a)(i) - the views of the new employer

• [18] Estia submits that it wishes to apply uniform conditions of employment to existing and transferring employees to ensure consistency, foster an inclusive and equitable environment and avoid unnecessary administrative costs and challenges. It's primary aims in making the Application are to avoid disparities in conditions of employment between transferring employees and their other employees in Queensland that could cause unfairness to transferring employees. They also hope to avoid the administrative costs and issues associated with implementing and applying multiple industrial agreements to employees working across Queensland.
• [19] I have taken into account the views of the new employer - Estia - including the effect of not granting the application. In the circumstances, this matter weighs in favour of making the order sought.

Section 318(3)(a)(ii) - the views of the employees who would be affected by the order

• [20] In the affidavit filed in support of the Application, Mr Gold explained that each of the employees who it is aware are affected by the Application were sent correspondence, were met with, were able to take up the offer to have further discussions and have questions answered and were each provided with a feedback form to share their views about the Application. Mr Gold said that each of the six employees affected provided completed feedback forms, and each indicated they had no concerns about the Application and agreed to their terms and conditions of employment being covered by the Estia Agreement instead of the Allity Agreement.
• [21] Estia also notified each of the Unions about the Application and, as directed by me, provided copies of the Application, Outline of Submissions and Affidavit to the Unions. The Unions were directed to advise as to whether they wish to file material in relation to the Application. The ANMF and the QNMU said they do not object to the Application.

Section 318(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

• [22] The Affidavit deposed to by Mr Gold contains details of a comparison analysis between the terms and conditions of employment applying to the relevant employees and those that would apply under the Estia Agreement.
• [23] Among other things, it notes that one Registered Nurse - Pay Point 6 - and one Maintenance Officer, are paid a rate that is higher than what would apply to the employees for the comparable classification under the Estia Agreement. It also confirms that Estia undertakes to create a separate payroll rule for any of the employee who would be paid less under the Estia Agreement and pay them what they are currently being paid until such time that any wage rate in the Estia Agreement, or in a future applicable Estia Health enterprise agreement, is greater than the wage rate that is currently paid to that employee.
• [24] Estia further submits that on the basis of its analysis, and taking into account the undertaking it provides (referred to above), all of the relevant employees will be paid higher wage rates and allowances, or the same wage rates pursuant to the undertaking, under the Estia Agreement. It also submits that the relevant employees will be entitled to additional allowances under the Estia Agreement. It also submits that there are some additional terms and conditions under the Estia Agreement of benefit to the relevant employees, that mean overall the Agreement provides for entitlements that are more beneficial than is presently the case.
• [25] None of the Unions challenged this analysis. I am satisfied that overall the relevant employees will not be disadvantaged by the order in relation to their terms and conditions of employment. This weighs in favour of making the orders sought.

Section 318(3)(c) - the nominal expiry date of the agreement

• [26] The Allity Agreement nominally expired on 30 October 2021. The Estia Agreement was recently approved on 10 February 2025 and will nominally expire on 30 June 2027. No particular submission was made by Estia in respect to this, and it is a neutral factor in my consideration.

Section 318(3)(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace

• [27] Estia submits that if the Order is not made, multiple different industrial instruments will apply to employees performing the same roles at the same facilities creating a disparity not only in employee pay, but also in general terms and conditions of employment, and that despite this already being the case in respect to some of its employees in Queensland, there may be negative impacts associated with a further group of employees having disparate employment conditions than others, which may impact upon productivity. I accept this submission and also consider that the additional administration associated with the Allity Agreement may cause a further negative impact, such that this weighs in favour of making the Order sought.

Section 318(3)(e) - whether the new employer would incur significant economic disadvantage as a result of the transferrable instrument covering the new employer

• [28] Estia submits that additional administrative costs will occur if it is required to apply multiple enterprise agreements to different employees at its facilities, including a not insignificant amount of additional cost associated with the bespoke payroll measures that would be required. I accept this submission and consider this weighs further in favour of making the Orders sought.

Section 318(3)(f) - the degree of business synergy between the transferrable instrument and any workplace instrument that already covers the new employer

• [29] Estia submits there is a lack of business synergy between the Allity Agreement and the Estia Agreement, and the approval of the Application would enable it to achieve greater business synergy by applying the same or substantially similar terms and conditions of employment to all of its aged care employees in Queensland. This weighs further in support of the Application.

• [30] Section 318(3)(g) of the Act requires the Commission to consider the public interest. The notion of public interest is informed by the objects of Part 2-8 as set out in s 309 of the Act, and the objects of the Act more generally[1]. This entails a concern for the protection of transferring employees' conditions of employment and the importance of an employer being able to run its enterprise efficiently[2].
• [31] Estia submits that it would be in the public interest to make the orders sought by the Application because doing so would result in an increase in pay for the majority of the employees whose employment is transferring to Estia, who would otherwise be covered by the Allity Agreement. It further submits that making the orders sought would result in more beneficial conditions of employment overall for the employees and also ensure consistency of terms of employment for Estlia's employees, which in turn is likely to result in a smooth transition delivering increased morale, productivity and standard of care for the vulnerable people living in the aged care facilities it operates.
• [32] I accept these submissions. However, this does not carry any particular weight in circumstances where the considerations in this decision have not been the subject of dispute between the parties. Accordingly, I regard this factor to be a neutral consideration.

• [33] Having given regard to each of the matters set out in s 318(3) of the Act, I am satisfied an Order[3] should issue that the Allity Agreement - which is a transferrable instrument that would, or would be likely to, cover the relevant employees - does not, or will not, cover those employees and that the Estia Agreement being the enterprise agreement which covers Estia in Queensland, covers, or will cover, the relevant employees.
• [34] For the purposes of s 318(4) of the Act, the order will come into operation in respect of the relevant employees on the date that they commence employment with Estia, or the date of the order, whichever is the later.

[1] Fair Work Act 2009 s 3

[2] AustralianSuper Pty Ltd [2024] FWC 734 [23]

[3] PR792274

Printed by authority of the Commonwealth Government Printer