//
[2026] FWC 246
General information, not legal advice.
Fair Work Commission
2026-01-28
Original judgment source is linked above.
s.318 - Application for an order relating to instruments covering new employer and transferring employees
Holstep Community Health Services Limited T/A Holstep Health
Application by Holstep Community Health Services Limited T/A Holstep Health for orders relating to transferable instrument
[1] An application has been made by Holstep Community Health Services Limited T/A Holstep Health (Holstep) pursuant to s 318 of the Fair Work Act 2009 (Cth) (the Act). The application concerns the Health and Allied Services, Managers and Administrative Workers (Victorian Stand-Alone Community Health Services) (Multi Employer) Enterprise Agreement 2022 - 2026 (the MEA) and the Holstep Health Enterprise Agreement 2024-2027 (the Holstep Agreement)
[2] The application also concerns former employees of Banyule Community Health (BCH) who were covered by the MEA and who accepted employment with Holstep before 3 June 2025 (the transferring employees). There some 47 such employees, employed in the roles of Dental Assistants, Oral Health Educators, Contract Management, Accounts Officers, Receptionists, Administrative Assistant/Support Workers, Café Assistants, Quality Officers, HR Officers, IT Support Officers, Department Managers and Project Workers.
[3] The Application was filed on 23 December 2025. The Application was accompanied by an affidavit made by Ms Catherine Borg, Holstep's human resources lead.
[4] The MEA covers the Health Services Union (HSU).
[5] I made Directions in this matter requiring Holstep to serve upon the transferring employees and HSU a copy of the Application, and a copy of my Directions by 15 January 2026. My Directions also invited the HSU to advise whether it wished to file submissions or other materials in relation to the application, and the transferring employees to make known to the Commission their views about the application by return email to chambers by 23 January 2026.
[6] There has been no correspondence received by the HSU or the transferring employees.
[7] In short, the Application concerns the merger between BCH and Holstep Community Health Services Limited (then trading as Holstep Health), which took place on 1 March 2025. The new entity is now known as Holstep. As part of the merger, BCH's operations were brough into Holstep Health's corporate structure and BCH was wound up. BCH and Holstep Health entered into a Transfer Deed on 22 October 2024 under which it was agreed that as soon as possible, Holstep Health was to make offers of employment to all BCH employees (unless expressly excluded in the Transfer Deed) and such offers must provide for continuation of their role, recognise their prior service with BCH and require a signed acceptance and resignation from their employment with BCH effective midnight on 28 February 2025, the day before the merger date. All BCH employees who accepted offers of employment from Holstep Health commenced employment with Holstep Health (Holstep) on 3 March 2025.
[8] The transferring employees are covered by the MEA and will continue to be so covered unless the orders sought in the Application are made. Holstep seeks the following orders:
[9] 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;
[10] 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 Affidavit of Ms Borg, 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.
[11] 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)).
[12] The MEA was approved by the Commission on 21 July 2023 and pursuant to s 312(1) of the Act is a transferrable instrument.
[13] The application has been made by Hosltep, the new employer. The requirement under s 318(2) has therefore been met.
Section 318(3) - Matters that the FWC must take into account
[14] The grounds relied on by Holstep which are set out in the application are outlined below.
Section 318(3)(a)(i) - the views of the new employer
[15] Holstep supports the Orders sought by the Application. It wants a genuine integration of BCG and Merri Health. Its preference is that employees who perform the same work should have access to the same terms and conditions. Applying two agreements would create an undue burden for Holstep from an administrative perspective in a number of ways. The Hosltep Agreement is more favourable in a number of key aspects than the MEA.
[16] I have taken into account the views of the new employer - Holstep - 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
[17] In support of the Application, Holstep explained that informally consulted with the transferring employees in early February 2025 about the proposed Application to have the Holstep Agreement apply to them instead of the MEA. At this time, Holstep asked the transferring employees to indicate whether they supported or opposed the proposed Application. Only two employees indicated they did not support the proposed Application, and most indicated they did support the proposed Application. A further "formal" consultation occurred in November 2025. Employees were provided more information about the Application and information sessions were held. Employees were asked to indicate whether they supported or opposed the Application, and 29 of the 47 transferring employees indicated they support the Application, and 18 of the 47 transferring employees did not respond.
[18] I note further than none of the transferring employees expressed a view about the Application, including their opposition to it, when invited to do so by the Commission.
[19] These matters weigh in favour of granting the Orders sought.
Section 318(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
[20] Holstep have explained that on an overall assessment, the Holstep Agreement is "overwhelmingly more beneficial" than the MEA and have brought to the Commission's attention a range of improved conditions.
[21] There has been no challenge to this analysis. On the basis of the material provided I do not think this factor weighs against the making of the Orders sought.
Section 318(3)(c) - the nominal expiry date of the agreement
[22] The MEA will nominally expire on 30 June 2026. The nominal expiry date of the Holstep Agreement is 1 August 2027. No particular submission was made by Holstep 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
[23] Holstep submits that if the Orders are not made, its productivity will be impacted negatively by the administrative and resourcing burden caused by managers and human resources staff having to distinguish between different arrangements for different employees performing the same work and a greater risk of non-compliance because of the diversity of terms and conditions.
[24] I accept these submissions and consider this matter 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
[25] Holstep submits while not significant, an economic disadvantage arises to Holstep, a not-for-profit health services provided, if funds are diverted to the increased administrative burden arising from dealing with different industrial instruments covering employees performing the same work.
[26] I accept this submission and consider that this weighs marginally in favour of making the Orders sought.
[27] Section 318(3)(f) - the degree of business synergy between the transferrable instrument and any workplace instrument that already covers the new employer
[28] Business synergy will be increased if the Orders sought by the Application are made, because the Holstep Agreement - already a key enterprise agreement applicable to many Holstep staff - will also apply to the transferring employees. This weighs further in support of the Application.
[30] Holstep submits that it would be in the public interest to make the orders sought by the Application because doing so will allow it to run its operations more efficiently, which is of benefit to the Victorian community.
[31] 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.
[32] Having given regard to each of the matters set out in s 318(3) of the Act, I am satisfied an Order should issue that the MEA - which is a transferrable instrument that would, or would be likely to, cover the relevant employees - does not, or will not, cover those employees.
[33] I will also make an Order that the Holstep Agreement will cover the transferring employees.
[2] AustralianSuper Pty Ltd [2024] FWC 734 [23]
Printed by authority of the Commonwealth Government Printer