Fair Work Act 2009

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

Application for orders relating to transferable instrument

• [1] Mecwacare provides aged care services, including residential aged care. It has made an application to the Commission for orders pursuant to s 318(1) of the Fair Work Act 2009 (Cth) (Act). The application is made in respect of Mecwacare's acquisition of the Allanvale Private Nursing Home, a residential aged care facility.

• [2] The application is made by Mecwacare in its capacity as the new employer.[1] It is supported by a statutory declaration of its General Manager, People and Culture - Business Partnering, Mr Luddington.[2]

• [3] Mecwacare assumed ownership of Allanvale Private Nursing Home on 13 June 2025 and the employment of the employees by Allanvale Private Nursing Home has ceased. Mr Luddington declares that those employees are now employed by Mecwacare and the work they are now performing for Mecwacare is the same, or substantially the same, as the work they were performing for Allanvale Private Nursing Home.

• [4] Mr Luddington's position is that there is a connection between Allanvale Private Nursing Home and Mecwacare. This is because Mecwacare now owns or has the beneficial use of some or all of the assets that Allanvale Private Nursing Home owned or had the beneficial use of and that relate to, or are used with, the transferring work.

• [5] The Australian Nursing and Midwifery Federation (ANMF), being an organisation covered by the Allanvale Agreement, supports the application.[3] The Commission did not receive responsive views from the Health Services Union, although it was served with a copy of the application and accompanying materials pursuant to directions of the Commission.

• [6] Having regard to the material before the Commission, I am satisfied that there has been a transfer of business from Allanvale Private Nursing Home to Mecwacare, within the meaning of s 311 of the Act. It follows that:

(a) the employees formerly employed by Allanvale Private Nursing Home and who are now employed by Mecwacare are transferring employees in relation to the transfer of business, within the meaning of s 311(2) of the Act; and

• (b) the Carewest Group Pty Ltd as Trustee for the Merange Family Trust (trading as Allanvale Private Nursing Home), ANMF and HSU Enterprise Agreement 2022[4] (Allanvale Agreement), which covered Allanvale Private Nursing Home and the transferring employees immediately before the transfer of the transferring employees' employment, is a transferable instrument within the meaning of s 312(1)(a) of the Act that covers Mecwacare and the transferring employees in relation to the transferring work (s 313(1)(a) of the Act).

• [7] The application seeks orders under s 318(1) of the Act to the effect that the Allanvale Agreement will not cover Mecwacare and the transferring employees and rather that the MECWA (trading as mecwacare), ANMF and HWU Enterprise Agreement 2024[5] (Mecwacare Agreement) which already covers the new employer, will cover the transferring employees.

• [8] In deciding whether to make the orders sought, I must take into account the matters set out in s 318(3) of the Act, which are considered in the analysis that follows.

The views of the new employer or a person who is likely to be the new employer and the views of the employees who would be affected by the order (s 318(3)(a))

• [9] The Commission must take into account the views of the new employer and the employees who would be affected by the order. Having made the application, Mecwacare supports the orders being made.

• [10] With respect to the views of the employees, Mecwacare says that it has communicated with the transferring employees in the following way:

(a) through an in-person staff meeting on 2 June 2025;

(b) through an email, sent on 2 June 2025, which included a copy of the presentation that was referred to during the staff meeting; a copy of a covering letter, highlighting Mecwacare's intention to have the Mecwacare Agreement cover the transferring employees; and a copy of an Explanatory Document, detailing the differences between the Allanvale Agreement and the Mecwacare Agreement; and

(c) through further meetings and a "presence" at the Allanvale site on 4 June and 13 June 2025.

• [11] The Commission issued directions in this matter on 17 June 2025 requiring Mecwacare to provide the transferring employees and the relevant employee organisations covered by the Allanvale Agreement with the following materials:

(a) a copy of the 17 June 2025 directions;

(b) the Form F40 Application for orders in relation to a transfer of business filed in the Commission on 1 April 2025 and its attachments; and

(c) advice that they may make a submission or file materials in response to the application in writing to Chambers.

• [12] Mecwacare submitted evidence of the service of this material on 25 June 2025. Mecwacare also submitted copies of emails of support received from some of the transferring employees.

• [13] Further, on 30 June and 2 July 2025, the ANMF filed submissions on its own behalf and on behalf the transferring employees who are its members and whose industrial interests it represents. As earlier stated, the ANMF expressed its support for the application.

• [14] I am satisfied that, through the processes described, the transferring employees who would be affected by the order have had an opportunity to express responsive views to the application. I take into consideration that the application is supported by the ANMF and that no views opposing the application have been received. The views before the Commission weigh in favour of making the orders sought.

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

• [15] The Commission must consider whether any employee would be disadvantaged by the orders in relation to their terms and conditions of employment. Before the Commission is an Explanatory Document which Mecwacare provided to the transferring employees at its meeting on 2 June 2025. This document provides a table of comparisons between the Allanvale Agreement and the Mecwacare Agreement.

• [16] The Explanatory Document records that many of the clauses in the respective instruments are "similar." As to those provisions that are identified to be more "favourable" under the Mecwarecare Agreement, these are summarised as follows:

(1) Wages: the rates of pay under the Mecwacare Agreement are higher than the Allanvale Agreement.

(2) Qualification allowance - registered nurses and enrolled nurses: The allowance rates are higher under the Mecwacare Agreement.

(3) Uniforms and laundry: The allowance rates are higher under the Mecwacare Agreement.

(4) Meal allowance: The allowance rate is higher under the Mecwacare Agreement.

(5) Travelling, transport and fares: The allowance rate is higher under the Mecwacare Agreement for aged care employees (but not nurses).

(6) Tool allowance: The allowance rate is higher under the Mecwacare Agreement.

(7) Occupational interpreters' allowance: The allowance rate is higher under the Mecwacare Agreement.

(8) On call and telephone recall: The allowance rate is higher under the Mecwacare Agreement.

(9) Part time employment: Improved minimum engagement under the Mecwacare Agreement.

(10) Casual employment: Higher casual rates of pay under the Mecwacare Agreement.

(11) Fixed term contracts: Said to be favourable under the Mecwacare Agreement.

(12) Minimum engagement: Improved minimum engagement under the Mecwacare Agreement.

(13) Workload management and vacancies: Said to be favourable under the Mecwacare Agreement.

(14) Police checks: Reimbursed under the Mecwacare Agreement.

(15) Enrolled nurse in charge allowance: The allowance rate is higher under the Mecwacare Agreement.

(16) Termination of employment: Limits the deduction from wages to one week if employee fails to provide or work their notice period.

(17) Redundancy: Increased severance pay and other entitlements.

(18) Classifications: Said to be favourable under the Mecwacare Agreement with a simplified structure, aligned to the Aged Care Award and facilitating a pathway to attain higher rates of pay.

(19) Registered and enrolled nurses: Higher rates of pay under the Mecwacare Agreement.

(20) HASA employees: Said to be favourable under the Mecwacare Agreement with a simplified structure, aligned to the Aged Care Award and facilitating a pathway to attain higher rates of pay.

(21) Trainees: Higher rates of pay under the Mecwacare Agreement.

(22) Education and professional development leave: Increased professional development leave under the Mecwacare Agreement.

(23) Hours of work/overtime/recall to duty: Improved conditions under the Mecwacare Agreement.

(24) Weekend work: Higher rates of pay under the Mecwacare Agreement.

(25) Shift work: Higher shift allowances under the Mecwacare Agreement.

(26) Meal break: Improved payment conditions in certain circumstances.

(27) Annual and personal/carers leave: Improved entitlement under the Mecwacare Agreement.

(28) Family violence, compassionate and parental leave: Improved entitlements under the Mecwacare Agreement.

(29) Long service, emergency services and ceremonial leave: Improved entitlements under the Mecwacare Agreement.

(30) Public holidays: Higher rates of pay under the Mecwacare Agreement.

(31) Disciplinary procedure: Said to be more favourable under the Mecwacare Agreement.

• [17] In addition, the Mecwacare Agreement contains additional clauses that are said to enhance the benefits for employees under the Mecware Agreement, as these provisions are not included in the Allanvale Agreement at all: medication allowance, buddy allowance, right to disconnect, transition to retirement, flexible leave, special disaster leave, gender affirmation leave and workplace delegates rights.

• [18] The ANMF submits that its members will have access to regular wage increases and other beneficial entitlements under the Mecwacare Agreement such as paid parental leave. The ANMF also says that Mecwacare was one of the first providers to apply an "averaging" system to apply the Commonwealth funding to uplift wages flowing from the Aged Care Work Value Case. By averaging the funding across qualifications, Mecwacare ensured that anomalies in the government guidance were addressed, and all classifications attracted a fair and equitable uplift, including those experienced nurses that the sector needs to retain.

• [19] The Explanatory Document identifies two aspects of the Mecwacare Agreement that are less favourable than the Allanvale Agreement: the travelling, transport and fares allowance for nurses and casual conversion. For completeness, I note that while the ANMF also raised some issues with respect to matters concerning the transferring employees' employment prior to the transfer, these are not matters that demonstrate that they will be disadvantaged by the orders sought in this application.

• [20] Having regard to the above matters, I am satisfied that the transferring employees will not be disadvantaged in relation to their terms and conditions of employment if the orders sought by Mecwacare are made. I consider that this weighs in favour of making the orders.

If the order relates to an enterprise agreement-the nominal expiry date of the agreement (s 318(3)(c))

• [21] The Allanvale Agreement has passed its nominal expiry date of 30 September 2023. I regard this to be a neutral consideration.

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

• [22] The Act requires the Commission to consider whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace. Mecwacare contends that it would. It submits that the requirement to maintain the Allanvale Agreement would impose an obligation upon it to preserve the specific terms and conditions in that instrument for the transferring employees, including by establishing and configuring a separate payroll and rostering system. Mecwacare's position is that this would negatively impact its productivity.

• [23] I accept Mecwacare's submissions. I consider that if the application is not granted, there would be an unnecessary and avoidable increased administrative burden associated with the continued application of the Allanvale Agreement to the transferring employees. I accept that this creates inefficiencies in terms of payroll productivity, which are not justified in circumstances where the material before the Commission demonstrates that the transferring employees are not disadvantaged by the transfer. I accept these matters may negatively affect the productivity of Mecwacare's workplace. This weighs in favour of making the orders.

Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer (s 318(3)(e))

• [24] Mecwacare does not contend that it will incur significant economic disadvantage as a result of the Allanvale Agreement covering it. I agree with this submission, noting that the rates of pay in the Allanvale Agreement are lower than the Mecwacare Agreement. This is a neutral consideration in my overall assessment.

The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer (s 318(3)(f))

• [25] The Commission is required to consider the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer. Mecwacare acknowledges that there are aspects of the Allanvale Agreement that are, in broad terms, substantially similar to the Mecwacare Agreement. I accept that these provisions are each conducive to the nature of the duties performed by the transferring employees. I regard this as a neutral consideration.

• [26] Section 318(3)(g) 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, and the objects of the Act more generally under s 3. 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.[6]

• [27] Having regard to those matters and the material before me, I consider the application to be compatible with the public interest. 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.

• [28] In deciding whether to make the orders, I am required to take into account all the matters in s 318(3) of the Act. I am satisfied on the basis of the matters set out in this decision that I should make the orders sought.

• [29] I will order that pursuant to s 318(1)(a) of the Act, that the Carewest Group Pty Ltd as Trustee for the Merange Family Trust (trading as Allanvale Private Nursing Home), ANMF and HSU Enterprise Agreement 2022 does not, or will not, cover the Mecwacare and the transferring employees, and rather, the MECWA (trading as mecwacare), ANMF and HWU Enterprise Agreement 2024, will cover the transferring employees in their employment with Mecwacare.

• [30] For the purposes of s 318(4) of the Act, the order will come into operation in respect of a transferring employee on the date that the transferring employee commences employment with Mecwacare, or the date of the order, whichever is the later.
• [31] An order giving effect to this decision is issued separately in PR790241.

[1] Fair Work Act 2009 (Cth), s 318(2)(a)

[2] Statutory declaration of M. Luddington dated 25 June 2025

[3] Email from C. Larkins to the Commission dated 2 July 2025

[4] [2023] FWCA 35; AE518792

[5] [2024] FWCA 4574; AE527329

[6] See AustralianSuper Pty Ltd [2024] FWC 734 at [23] (per Colman DP)

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