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

Application for an order relating to instruments covering a new employer and transferring employees - transfer of business from an old employer to new employer - new employer wishes to standardise the terms and conditions of employment of transferring and non-transferring employees - no employees disadvantaged by proposed order in relation to terms and conditions of employment - appropriate and not contrary to public interest to make orders sought - discretion exercised - application granted.

[1] One Tree Community Services Incorporated has made an Application under s 318 of the Fair Work Act 2009 (Cth) for orders in relation to employees who are:

a) currently engaged by Griffith University who are engaged in the operation of the Boronia and Tallowwood Childcare Services;

b) currently covered by the Griffith University Professional Support Staff Enterprise Agreement 2023-2025 (GU Agreement); and

1. who may become employed by One Tree should it commence to operate Boronia and Tallowwood Childcare Services (Transferring Employees).

a) that the GU Agreement, as a transferable instrument, not cover One Tree and Transferring Employees with respect to their employment with One Tree.

[3] I have considered all of the factors set out in s 318(3) and have concluded that it is appropriate and not contrary to the public interest to make the Orders sought under s 318. The Orders issue concurrently with this decision.

[4] My detailed reasons for granting the Orders follow.

[5] One Tree submitted a statutory declaration from Ms Irina Cattalini, Executive Director, in support of the Application.

[6] The Application concerns approximately 28 employees who are performing Early Childhood Education and Care work at the Boronia and Tallowwood Childcare Services currently operated by Griffith University and are covered by the GU Agreement.

[7] The GU Agreement covers Griffith University as a higher-education institution within the tertiary education sector. It contains university-specific entitlements that are not consistent within the ECEC industry.

[8] Griffith University has decided to stop its operation of the Boronia and Tallowwood Childcare services by the end of 2026.

[9] One Tree recently entered a memorandum of understanding with Griffith University regarding the Boronia and Tallowwood childcare centres. One Tree will become the operator of the centres and intends to offer employment to most of the existing employees.

• [10] On Thursday 16 October 2025, Griffith University commenced the consultation process with the Transferring Employees by distributing a change paper. The timeline for consultation was as follows:[1]

(a) Wednesday 22 October 2025, Griffith University conducted a Q&A session for the Transferring Employees. This was led by the Chief Operating Officer.

(b) Friday 24 October 2025, Griffith University's Vice Chancellor commenced consultation with Griffith University staff and the broader community.

(c) Wednesday 29 October 2025, Griffith University conducted a Q&A session for all Transferring Employees. This was led by the Chief Operating Officer.

(d) Thursday 30 October 2025, individual meetings were held with the Transferring Employees and an HR Business Partner to discuss the personal impacts of the proposed change.

(e) Tuesday 4 November 2026, Griffith University conducted a Q&A for the Transferring Employees and an introduction to One Tree. There was discussion of general conditions, entitlements, and operating models. This included the discussion differences between the GU Agreement and the CS Award and TS Awards and the intention to seek a s 318 order.

(f) Friday 7 November 2025, formal consultation ended.

(g) Friday 14 November 2025, Griffith University distributed the change paper outcome and feedback. Transferring Employees were provided with a fact sheet and FAQs regarding the Application, as well as a survey regarding the potential transfer.

(h) Thursday 20 November 2025, survey results showed that there was a majority support for the Application.

[11] Once the matter had been allocated to me, I provided any relevant union and the affected employees the opportunity to contact my Chambers if they opposed the Applicant. On Thursday 22 October 2025, the United Workers Union, being the relevant Union, confirmed by email that it supports the Application. This support was based on the understanding that the Transferring Employees would continue to be paid the higher rates of pay under the GU Agreement.

[12] Section 317 of the Act enables the Commission to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

• [13] The discretion to make the Orders sought by One Tree under s 318(1) of the Act will only be exercised after the factors set out in s 318(3) of the Act are considered.[2] These factors, which must be read having regard to the objects of the Part, are intended to enable the Commission to balance appropriately the protection of employees' entitlements under certain instruments with the need for some flexibility to depart from the default rules about coverage of instruments following a transfer of business.[3]

[14] Section 318 of the Act sets out the circumstances in which an order such as that sought by Redpath may be made by the Commission:

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;

[15] The exercise of the discretion given to the Commission in this regard is undertaken within the object of this Part of the Act, which states as follows:

The object of this Part is to provide a balance between:

(a) the protection of employees' terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and

(b) the interests of employers in running their enterprises efficiently;

if there is a transfer of business from one employer to another employer.

4.1 s 318(2)(a) - application by the new employer of a person who is likely to be the new employer

[16] One Tree has standing to make the Application as the new employer or likely new employer.

4.2 s 318(3)(a)(i) - the views of the new employer of a person who is likely to be the new employer

[17] One Tree submits that its operating model relies on consistent Award-based entitlements across its services. I am satisfied that One Tree, as the likely new employer, wishes to standardise the terms and conditions of employment of transferring and non-transferring employees.

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

• [18] One Tree provided my Chambers with the consultation timeline and survey results of the Transferring Employees. The Transferring Employees also had the opportunity to provide their views on the Application to my Chambers.[4] As already noted in this Decision, my Chambers did not receive any correspondence from the Transferring Employees.

4.4 s 318(3)(b) - whether any employees would be disadvantaged by the order

[19] There are some individual conditions under the GU Agreement that are more generous than those offered by One Tree. These include high superannuation contribution, 26 weeks paid parental leave and certain types of leave that are specific to the higher education sector (i.e. workplace relations training leave; reserve forces leave; emergency services leave; gender affirmation leave).

[20] However, One Tree submits it will be offering the following benefits to the Transferring Employees: higher base rates of pay for all classifications with the exception of AQ/1, AQ/3 and GNQ/2; and additional leave entitlements that are more suited to the ECEC context, such as 10 days bonus accrued leave; an additional three days annually after three years of service; community service leave; and additional special sick leave. One Tree also submits that for employees employed in the AQ/1, AQ/3 and GNQ/2 classifications, they will be offered the equivalent to their current rate. Further, One Tree intends to apply for the Transferring Employees to be included in its current Commonwealth Government Early Childhood Education and Care Worker Retention Pay Scheme, which if successful, will result in the Transferring Employees receiving a pay increase, of a top-up rate equivalent to 15% above the modern award.

[21] On balance, I am satisfied that the Transferring Employees will not be disadvantaged by the order.

[22] I note that the nominal expiry date of the GU Agreement was Monday 30 June 2025.

4.6 s 318(3)(d) & (e) - negative impact on productivity and significant economic disadvantage

[23] One Tree submits it would cause a negative impact on productivity of its workplace is the Orders sought are not granted, as it would need to invest in significant activity to implement the GU Agreement into various payroll, HR and admin structures.

[24] One Tree submits that the impact on productivity this along with the minimised operational efficiencies would cause economic disadvantage. I accept these submissions.

• 4.7 s 318(3)(f) - degree of business synergy

[25] One Tree submits that there is little, if any, business synergy between One Tree's industrial instruments and the GU Agreement as they provide for different employment types and conditions. One Tree submits the GU Agreement is customised to the higher education sector and Griffith University's specific business operations.

[26] I am satisfied that it is in the public interest to have cohesive, standardised and harmonised conditions of employment applying to employees doing the same or similar work in circumstances where there is no detriment to transferring employees.

[27] I also note that comparable findings in the context of the university childcare services being transferred to specialist ECEC providers were made in Goodstart Early Learning [2022] FWC 1284 and Creche & Kindergarten Association Ltd [2010] FWA 6281.

• [28] In accordance with s 318(4), the Order will come into effect on the date that the Order is made, or from the time when the Transferring Employees commence working for One Tree, whichever is the latter.[5]

[1] Statutory Declaration of Irina Cattalini, Appendix A.

[2] Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1259].

[4] Directions dated Friday 19 December 2025 at [4].

[5] PR797067.

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