s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Nexus Day Hospitals Pty Ltd Trading AS Nexus Hospitals

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

• [1] Nexus Day Hospitals Pty Ltd trading as Nexus Hospitals (the Applicant) has applied to the Fair Work Commission (the Commission) pursuant to s.319 of the Fair Work Act 2009 (Cth) (the Act) for an order in relation to a transfer of business.

• [2] The Applicant seeks an Order for the Hobart Day Surgery Pty Ltd Nurses Enterprise Agreement 2023 (Agreement) to cover the Applicant and any non-transferring employee who performs the transferring work for the Applicant and undertakes their work in Tasmania. It seeks an Order that will take effect in relation to each non-transferring employee on and from the date of the Order, or from the date on which the non-transferring employee commences performing the transferring work as an employee of the Applicant, whichever is the later date. The Applicant filed a wage comparator noting wages and allowances and a back payment calculation.

• [3] If the Order sought is not granted, the impacted new non-transferring employees, who are subsequently engaged by the Applicant in roles within classifications in the Agreement will otherwise be covered by the Nurses Award 2020 (Award).

• [4] Part 2-8 of Chapter 2 of the Act describes when a transfer of business occurs and s.312(1) of the Act provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one employer to another employer.

• [5] Section 311 of the Act relevantly provides:

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.

Transfer of assets from old employer to new employer

(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and

(b) the new employer or an associated entity of the new employer;

the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):

(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and

(d) that relate to, or are used in connection with, the transferring work.

New employer is associated entity of old employer

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer." (bold and italicised text in the original)

• [6] Section 317 of the Act relevantly provides:

"317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer." (bold and text in the original)

• [7] Section 319 of the Act relevantly provides:

"319 Orders relating to instruments covering new employer and non‑transferring employees

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non‑transferring employee because of subsection 314(1) does not, or will not, cover the non‑transferring employee;

(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer.

Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non‑transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer.

(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 non‑transferring employee who performs, or is likely to perform, the transferring work for the new employer;

(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 non‑transferring employee before the later of the following:

(a) the time when the non‑transferring employee starts to perform the transferring work for the new employer;

(b) the day on which the order is made." (bold and italicised text in the original)

• [8] Section 319(4) of the Act relevantly states:

"Restriction on when order may come into operation

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

(a) the time when the non‑transferring employee starts to perform the transferring work for the new employer;

• [9] The Applicant asserts that prior to 13 October 2025, Hobart Day Surgery Pty Ltd (ABN 37 065 718 989) (the Old Employer) employed employees (Existing Employees) under the Agreement. The Applicant has advised that a transfer of business from the Old Employer to the Applicant took place on 13 October 2025. The Applicant and the Old Employer are part of the Nexus corporate group and the transfer of business is part of a national project that will achieve a single employing entity for all Nexus employees in Australia. The Old Employer employed approximately 55 employees who were covered by the Agreement. The Existing Employees transferred to the Applicant with no break in continuity of employment/operations.

• [10] The Applicant submits that it will be the 'new employer' for the purposes of s.311(1) of the Act.

• [11] I am satisfied that there has been a transfer of business within the meaning of s.311 of the Act from the Old Employer to the Applicant and that the Applicant is a "new employer" pursuant to s.311(1) of the Act, having regard to the material before me, because:

• Employees of the Old Employer who were employed to perform work described in the classifications of, and whose employment is otherwise covered by the Agreement ceased to be engaged by the Old Employer and were immediately engaged by the Applicant on the same terms and conditions of employment (Transferring Employees);

• the Transferring Employees will continue to perform the same or substantially the same work as they performed for the old employer and this has been continuous (no break in employment);

• there is a connection between the Old Employer and the Applicant as they are associated entities.

• [12] As I am satisfied that the Applicant is a "new employer", as defined pursuant to s.311(1) of the Act, it may apply to the Commission under s.319 of the Act for orders relating to a transferable instrument.

• [13] As it is an enterprise agreement that was approved by the Commission on 20 November 2024, the Agreement is a transferable instrument pursuant to s.312(1)(a) of the Act.

• [14] Section 314 of the Act provides that the Agreement covers the Applicant and any non-transferring employees, subject to any order of the Commission under s.319(1) of the Act.

• [15] As the Applicant is the new employer, the requirement in s.319(2)(a) of the Act is met. The Applicant seeks an order that the Agreement covers it and any non-transferring employees pursuant to s.319 of the Act.

Matters that the Commission must take into account - Section 319(3)

Section 319(3)(a) the views of the new employer or a person who is likely to be the new employer and the employees who would be affected by the order

• [16] The Applicant, the new employer, has made the application under s.319 of the Act and supports the making of the order sought.

• [17] The Applicant submits that the Agreement will provide better terms and conditions for the New Employees compared to the Award, provides employees with consistency and reduces administrative and other burdens imposed on the Applicant should it otherwise be required to engage employees pursuant to multiple instruments.

• [18] The Applicant asserts that it wishes to apply uniform conditions of employment to Existing Employees and New Employees in Tasmania, to ensure consistency and parity for all employees, foster an inclusive and equitable environment and avoid unnecessary administrative costs.

• [19] Upon filing, the Applicant stated that there were no employees affected and as such, the views of employees who would be affected could not be obtained. New employees engaged following the transfer of business (New Employees) will be offered employment on the basis that the Agreement will cover them. Such workers, the Applicant asserts, will likely desire this outcome noting that the significantly higher wages and other entitlements that would be part of their minimum safety net.

• [20] Having regard to the matters raised in relation to s.319(3)(a), I have formed the view that they weigh in favour of granting the order sought.

Section 319(3)(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment

• [21] The Applicant submits that granting the order sought would result in "significant advantages for employees (i.e. the non-Transferring Employees)" than if the Award applied, particularly in relation to the applicable rates of pay that would apply.

• [22] Attachment A to the application set out the rates of pay under the Agreement compared with the Award and purports to demonstrate that New Employees will be better off under the Agreement because the base hourly rates are higher than the comparable base hourly rates for the equivalent classifications under the Award, with some classifications receiving in excess of $22 extra per hour.

• [23] The Applicant asserts that there are various entitlements conferred by the Agreement that would apply to the New Employees which are not otherwise conferred by the Award, including:

(a) a minimum engagement of 3 hours for part-time employees (cl 12(c)(iv));

(b) an opportunity for part-time employees to have their hours reviewed (cl 12(c)(vi));

(c) a minimum engagement of three hours (cl 18(h));

(d) 12 weeks paid parental leave and 3 weeks paid partner leave (cl 24);

(e) 2 days' paid Natural Disaster Leave (cl 27);

(f) 2 days' paid Unforeseen Leave (cl 28);

(g) Continuing Education Allowance for higher qualifications, up to 7.5% (cl 33);

(h) 3 days' paid leave for Professional Development (cl 34);

(i) Salary Sacrifice provision (cl 36); and

(j) 2 days' paid leave to obtain financial counselling in circumstances of redundancy (cl 37(e)).

• [24] Further, the Applicant asserts that there are various terms and conditions conferred by the Agreement that would apply to the New Employees which are superior to equivalent terms and conditions under the Award, including:

(a) dispute resolution procedure allowing for unilateral arbitration (cl 7);

(b) roster displayed 2 weeks in advance (cl 18(h)(i));

(c) Minimum recall of 4 hours (cl 20(h)(ii));

(d) 15 days of Personal / Carer's leave with 4 individual days not requiring evidence (cl 22); 3 days' compassionate leave (cl 23); and

(e) Public holiday, including a substituted day, will be paid at 250% (cl 29(b)).

• [25] While the Applicant acknowledges that there is one matter that is less beneficial, it asserts that it would very rarely apply. Clause 19(a)(iii) of the Agreement outlines that if a meal break is interrupted, the employee will be paid for that meal break as time worked and the employee will be allowed a meal break as soon as practicable. By way of contrast, cl 14.1 of the Award outlines that if an employee is required to be on duty during a meal break, they will be paid overtime for all time worked until a meal break is taken. The Applicant meets this situation by asserting that this is not common practice and that it is nevertheless offset by the higher wages under the Agreement.

• [26] I note the Commission has previously satisfied itself that, in relation to the Agreement, the requirements of s.186 of the Act have been met (which includes the requirement for the Commission to be satisfied that the Agreement passes the better off overall test). Having considered all the material before me, I am satisfied that impacted non-transferring employees will not be disadvantaged by the order in relation to their terms and conditions of employment. I am also satisfied that transferring employees will not be disadvantaged. Therefore, I consider this factor weighs in favour of making the order sought.

Section 319(3)(c) if the order relates to an enterprise agreement - the nominal expiry date of the agreement

• [27] I note that the Agreement was approved on 20 November 2024 and has a nominal expiry date of 30 Match 2027. The Applicant asserts that the negotiations with the ANMF and the HSU (Tasmania Branch) were relatively recent and resulted in fit-for-purpose terms and conditions relevant to associated employees. It asserts that this provides a substantive period of consistency to terms and conditions for both Existing and New Employees, prior to any further enterprise agreement negotiations. This weighs in favour of making the order sought.

Section 319(3)(d) whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace

• [28] The Applicant submits that the Agreement itself will not give rise to a negative impact on the productivity of the Applicant's workplace. It asserts that it has accepted the Agreement as a transferable instrument and has developed payroll infrastructure to accommodate its terms. Conversely, the Applicant submits that if the Order is not granted, there will be a negative impact to the Applicant's productivity.

• [29] I have formed the view these factors weigh in favour of making an order. I do not apprehend the Agreement having a negative impact on the productivity of the Applicant's workplace.

Section 319(3)(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

• [30] The Applicant asserts that this section is not applicable to the Orders being sought by the Applicant. It asserts that it is a neutral consideration in this context.

• [31] I accept the proposition that having a single instrument apply to transferring and non-transferring employees promotes consistency and equity in the Applicant's employment arrangements. Further, I consider the benefits derived from having a single instrument applying to transferring and non-transferring employees is likely to result in some economic advantage, including by removing operational inefficiencies and decreasing the administrative burden associated with applying the different instruments (with respect to employees performing the same sort of work). I am satisfied that this would not result in a significant disadvantage to the Applicant because any economic disadvantage that might arise as a result of the more beneficial terms and conditions having to be applied under the Agreement would be ameliorated by the benefits of consolidation. I have formed the view that s.319(3)(e) weighs in favour of granting the order sought.

Section 319(3)(f) the degree of business synergy between the transferable instrument and any

workplace instrument that already covers the new employer

• [32] The Applicant asserts that there is little business synergy between the Agreement and the Award, as they provide different minimum employment conditions. It also asserts that there are ample points of difference between the instruments. The Applicant goes on to assert that ensuring that New Employees are covered by the Agreement will allow for consistency across the Applicant's nursing workforce and that it would be incongruous for there to be a select group of employees of the new employer (i.e. the New Employees) who would be covered by the Award, rather than the Agreement.

• [33] I am satisfied there would be a degree of synergy between the Agreement and the Award, just as there are some differences. However, as outlined above, I consider affording the Applicant a single framework of regulation will enhance the "promotion of consistency and equity" in its employment arrangements and that the removal of operational inefficiencies and a decrease in the administrative burden associated with applying the different instruments is conducive to some economic advantage. I am therefore satisfied this factor does not weigh against the granting the order sought.

• [34] The Applicant contends that the public interest is not agitated by this application, other than to note that the Agreement will ensure more employees are covered by a strong enterprise agreement and the Applicant submits that this is in the public interest - i.e. lifting workers off the minimum conditions of the Award.

• [35] Prior to its approval, the Agreement was negotiated with the relevant bargaining representatives. The Applicant, when filing this application, noted that the relevant employee organisations had been included in the email by way of service, and the Applicant confirmed that it had engaged in discussions with each organisation and understand that they support the Application and Orders sought. I have not received any correspondence or submissions to the contrary.

• [36] Given these circumstances and having regard to the material before me, I am satisfied that there are no public interest reasons weighing against making of an order that operates in accordance with s.319(4) of the Act.

• [37] Having considered each of the matters set out in s.319(3) of the Act, I am satisfied that the following order should be made, with effect on and from 1 December 2025 (s.319(4)(a)):

• Further to the Decision [2025] FWC 3668 issued on 1 December 2025, and pursuant to s.319(1)(b) of the Fair Work Act 2009 (Cth) (the Act), the Fair Work Commission orders that the Hobart Day Surgery Pty Ltd Nurses Enterprise Agreement 2023, a transferable instrument that will cover Nexus Day Hospitals Pty Ltd trading as Nexus Hospitals pursuant to the Act, will cover each non-transferring employee who performs the transferring work for Nexus Day Hospitals Pty Ltd trading as Nexus Hospitals and undertakes their work in in Tasmania.

• In accordance with s.319(4) of the Act, the order will take effect in relation to each non-transferring employee on and from the date of this Order, or from the date on which the non-transferring employee commences performing the transferring work as an employee of Nexus Day Hospitals Pty Ltd trading as Nexus Hospitals, whichever is the later date.

• [38] An Order[1] to this effect will be issued along with this decision.

[1] PR794364.

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