s.768BA - Application for an order about coverage for transferring employees under a state instrument

Frontier Advisors Pty Ltd Trading AS Frontier Advisors

Application for orders relating to instruments covering new employer and transferring employees.

• [1] An application (the Application) has been made pursuant to s. 768BA(2) of the Fair Work Act 2009 (the Act) by Frontier Advisors Pty Ltd Trading As Frontier Advisors (Frontier) seeking an order from the Fair Work Commission (the Commission) that the State Super Enterprise Agreement 2024-2027 (the STC Agreement)[1] not cover Frontier and transferring those employees who are currently employed by SAS Trustee Corporation Staff Agency, also known as State Super (STC), and are covered by the STC Agreement.

• [2] Directions were issued by the Commission on the 12 November 2025 allowing for submissions and materials to be filed in relation to the application by Frontier and any Transferring Employees. Frontier filed material in accordance with the directions including a witness statement of Frontier's Head of People and Culture, Ms Sarah Guthlebsen. No submissions or materials were received from any of the Transferring Employees. In those circumstances I have decided to determine the matter on the papers.

• [3] Frontier and STC entered into a written agreement dated 10 October 2025 (Transition Agreement) which provides for (amongst other things):

1. the appointment of Frontier to provide investment and advisory services to STC in relation to the investment activities carried on by it; and

1. the offer of employment by Frontier to a number of employees who are currently employed by STC (Transferring Employees) and who are performing work for STC in relation to its investment activities.[2]

• [4] The transfer of STC employees to Frontier will occur on 1 December 2025 and is not dependent on the outcome of the Application.[3]

• [5] The STC Employees are currently covered by the STC Agreement which is a Copied State Collective Agreement[4] as defined by the Act. The effect of the order sought by Frontier is that the Transferring Employees would, on transfer of their employment, be covered by the Banking, Finance and Insurance Award[5] (the Award) which applies to Frontier and its current employees. There are 13 Transferring Employees[6] who have been offered and accepted employment with Frontier pursuant to a written employment agreement (Employment Agreement),on terms said by Frontier to be substantially similar to, and when considered on an overall basis, no less favourable than the STC Agreement.

• [6] Frontier set out the process by which it consulted with Transferring Employees regarding the transfer of their employment to Frontier and the Application. The steps taken included the following;

• • On 13 May 2025, Ms Sarah Guthlebsen, met with Transferring Employees in person in Sydney to commence the consultation process[7]. Further meetings were attended by Ms Guthlebsen on 25 - 26 June, 23 - 24 July and 13 - 14 October 2025[8].

• • During the consultation meetings, Ms Guthlebsen and her colleagues dealt with a range of matters including; the way in which the transfers between STC and Frontier would take place, a comparison of terms and conditions of employment between STC and Frontier, the likely challenges for Frontier if they had two different sets of conditions of employment, Frontier's proposed streamlining of terms and conditions of employment and the impact on Transferring Employees if the Application was approved.[9]

• • As part of the consultation process, Frontier provided Transferring Employees with a template Employment Agreement[10] which set out proposed terms and conditions of employment and included a detailed comparison of terms and conditions of employment between STC and Frontier.[11]

• • Transferring Employees were also provided with a document titled 'Terms and Conditions Comparison Table'[12] which set out a detailed comparison of terms and conditions. Transferring Employees were also provided with PowerPoint presentations[13] titled 'STC Staff Presentation 18-6 V2' and 'STC Staff Presentation 19-7-25' (the Presentations) and a copy of Frontier's Remuneration Policy.[14]

• • Between 13 May and 13 October 2025, Frontier obtained feedback from Transferring Employees regarding the proposed Application and were invited to raise any concerns and queries. Queries were raised by employees in relation to various issues, including leave accruals, Frontier's gift and benefit policy and Frontier's personal trading policy.[15]

• • On 13 October 2025, Ms Guthlebsen sent an email to all Transferring Employees asking whether they would support the Application by signing a Letter of Support. By 5 November 2025, all bar one of the Transferring Employees returned a signed Letter of Support.[16]

• [7] The Application is made pursuant to s.768BA of the Act, which allows the Commission to make orders that a Copied State instrument does not or will not cover the transferring employee, and that an enterprise agreement that covers the new employer does or will cover the transferring employee.

• [8] The matters the FWC must take into account in determining whether to make the above orders are set out in s.768BA(3);

(3) In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(i) the employees who would be affected by the order; and

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

(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 a copied State employment agreement or an enterprise agreement - the nominal expiry date of the agreement;

(d) whether the copied State 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 copied State instrument covering the new employer;

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

• [9] I now turn to consider the matters set out in s 768BA(3) of the Act

• [10] Frontier as the new employer is able to make an application of the present type pursuant to s.768BA(2). The orders sought by Frontier are within the scope of s.768BA(1) of the Act.

The views of the new employer and Transferring Employees

• [11] Frontier seeks that the STC Agreement does not operate in its business in respect of Transferring Employees and that Transferring Employees would be covered by the Employment Agreement underpinned by the Award. Copies of signed Transferring Employee Letters of Support were provided by Frontier as evidence of Transferring Employees' support for the Application. No Transferring Employees filed any material in relation to the application. Having regard to Frontier's views and the signed Letters of Support, these factors weigh in favour of the granting of the order sought by Frontier.

Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

• [12] Transferring Employees would enjoy some improved benefits; including in respect of paid parental leave, annual leave, personal/carer's leave, long service leave, Christmas leave and short-term incentives. Additionally, Frontier have agreed to contractually grandfather some more beneficial entitlements that applied to Transferring Employees while employed with STC, including redundancy entitlements and one-off base salary increases. Certain more beneficial entitlements under the STC Agreement would not be maintained including in respect of overtime penalty rates, paid lactation breaks, expense reimbursement for court attendance, higher accruals of certain paid leave types (e.g. community service) and professional memberships. Transferring Employees would also move from a 35-hour to 38-hour week. On the latter point, Frontier submits that the practical reality is that Transferring Employees actually work 38 hours per week currently with STC.

• [13] Having reviewed the comparison of the key terms and conditions in the Employment Agreement versus the STC Agreement, I am satisfied in the circumstances that Transferring Employees will on balance not be disadvantaged by the order sought in relation to their terms and conditions of employment. The absence of any significant demonstrable disadvantage weighs in favour of the granting of the order sought.

If the order relates to a copied State employment agreement or an enterprise agreement - the nominal expiry date of the agreement

• [14] The nominal expiry date of the STC Agreement is 30 June 2027. As Transferring Employees would not be covered by a registered enterprise agreement following transfer of their employment to Frontier, they would not be precluded from engaging in enterprise bargaining. I regard this a neutral consideration.

Whether the copied State instrument would have a negative impact on the productivity of the new employer's workplace

• [15] I am satisfied that the Copied State instrument would, if it applied, require Frontier to maintain terms and conditions of employment in respect of Transferring Employees performing similar duties and functions that are different to the balance of Frontier's workforce of 85 employees who are employed under employment agreements and are covered by the Award. I am satisfied that not making the order sought would create operational inefficiencies, would create a risk of tension and dissatisfaction over different terms and conditions applying, and give rise to negative productivity impacts flowing from the requirement for Frontier to administer the terms of the STC Agreement covering a small number of Transferring Employees. This weighs in favour of granting the order sought.

Whether the new employer would incur significant economic disadvantage as a result of the copied State instrument covering the new employer

• [16] Frontier submit that it would, if the order is not granted in the terms sought, suffer financial disadvantage and specifically administrative difficulties arising from the requirement to maintain and comply with the STC Agreement for a small number of employees[17]. I agree. This weighs in favour of granting the order sought.

The degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer

• [17] I am satisfied there is a lack of synergy between the STC Agreement and the terms and conditions that Frontier apply to their existing workforce and that granting the order sought would ensure streamlining of the administrative and operational processes of Frontier. This weighs in favour of the order sought by Frontier.

• [18] I am satisfied that it is not contrary to the public interest to grant the order sought by Frontier. This is a neutral factor.

• [19] Having considered the application, Ms Guthlebsen's evidence and supporting material and taking into account each of the requirements in s 768BA(3) of the Act, I am satisfied that, as no matters weigh against granting and several matters weigh in favour of the order sought, I should exercise the discretion available to me and grant the order sought.

• [20] An Order (PR 794581) will be separately issued with this Decision and will take effect from the later of the 6 December 2025 or when Transferring Employees commence employment with Frontier.

[2] A1, Witness Statement of Sarah Jane Guthlebsen, dated 27 November 2025, at [6]

[4] Section 768AK(4) of Fair Work Act 2009

[6] Exhibit A1, Annexure SG-1, List of Transferring Employees

[10] Exhibit A1, Annexure SG-2, Template Employment Agreement

[12] Exhibit A1, Annexure SG-3, Terms and Conditions Comparison Table

[13] Exhibit A1, Annexure SG-4, PowerPoint Presentations

[14] Exhibit A1, Annexure SG-5, Employee Handbook and Remuneration Policy

[16] Exhibit A1, Annexure SG-7, Letter of Support

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