Fair Work Act 2009

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

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

• [1] Optus Administration Pty Limited (the Applicant/Optus) has applied to the Fair Work Commission (the Commission) for an Order in relation to a transfer of business pursuant to s.318 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The application arises in the following context.

• [3] Optus is part of a group of entities that are subsidiaries of Singtel Optus Pty Ltd (together, Optus Group). Each group member is an associated entity of another group member.

• [4] The Optus Group provides information technology (IT) related support to its customers in addition to the provision of telephone, internet and television services. This includes the Optus Group managing or supporting customers with their own IT environment, which involves (among other things):

a. identifying, managing and resolving IT-related problems;

• [5] Singtel Optus Pty Ltd (an associated entity of Optus) entered into an outsourcing service agreement with Infosys Limited (Infosys) (an associated entity of Infosys (Malaysia) Sdn. Bhd - 'IMSB') on 14 December 2021, pursuant to which a team of 75 employees employed by Optus who performed the Outsourced Services transferred to employment with IMSB (2022 Transferring Employees) to perform the Outsourced Services (2022 Outsourcing).

• [6] At the time of the 2022 Outsourcing, the Optus Employment Partnership Agreement (2022) (2022 Agreement) covered Optus employees and has continued to cover some of the 2022 Transferring Employees during their employment with Infosys following the 2022 Outsourcing.

• [7] On 7 May 2025, the Optus Group gave Infosys and IMSB notice that it intends to cease some of the outsourcing service arrangements with them, and the Outsourced Services which have been performed by Infosys and IMSB will be insourced and performed by Optus employees from 7 October 2025.

• [8] Optus is in the process of hiring employees who will perform the Outsourced Services that will be insourced from Infosys. As part of this process, Optus has made offers of employment to some IMSB employees including employees who are currently covered by the 2022 Agreement and who will continue to be covered by the 2022 Agreement upon their transfer to Optus (being 2025 Transferring Employees). Relevantly, the 2025 Transferring Employees will be performing the same, or substantially the same, work as they currently perform at IMSB.

• [9] The 2025 Transferring Employees will commence their employment with Optus on 1 October 2025 and 15 October 2025.

• [10] The Applicant has submitted that there will be a transfer of business from IMSB to Optus in respect of the 2025 Transferring Employees for the purpose of s.311 of the Act because:

"a. the employment of 2025 Transferring Employees with IMSB will terminate;

b. the 2025 Transferring Employees will commence employment with Optus within 3 months after the termination of their employment with IMSB;

c. the work that the 2025 Transferring Employees will perform for Optus is the same, or substantially the same, as the work they have been performing for IMSB; and

d. there is a connection between IMSB and Optus as the Optus Group will cease outsourcing work to Infosys (s 311(5))."

• [11] The Applicant applies for the following orders under s.318(1) of the Act (the proposed orders):

"1) The Optus Employment Partnership Agreement (2022) (2022 Agreement) does not and will not cover Optus Administration Pty Ltd (Optus) or any Transferring Employees in relation to the employment of the Transferring Employees by Optus.

2) The Optus Employment Partnership Agreement (2025) (2025 Agreement) covers and will cover the Transferring Employees, until it is terminated or replaced by a new enterprise agreement.

3) In this order, "Transferring Employees" refers to transferring employees as defined in Part 2-8 of the FW Act, who would undertake work at Optus that is the same, or substantially the same, as the work they perform for Infosys (Malaysia) Sdn. Bhd ABN 17 658 305 947 (IMSB) and which falls within the coverage of the 2022 Agreement.

4) This order shall take effect on and from the later of the date that the order is made or when Transferring Employees become employed by Optus."

• [12] The Applicant filed submissions in support of the application. The application was also supported by a Witness Statement of Ms Amanda Jung, Senior Director - Employee Relations and Policy.

• [13] A Conference was conducted by telephone on 30 September 2025, at which a number of matters relating to the application were clarified.

• [14] This decision determines the s.318 application.

"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;

(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;

• [16] The Commission may make orders under s.318 if there is, or is likely to be, a transfer of business from an 'old employer' to a 'new employer'.[1] Having considered the information in the application, the further submissions of the Applicant and the Affidavit of Ms Jung, I am satisfied that there will be a transfer of business from IMSB to the Applicant in respect of the 2025 Transferring Employees and that the Applicant will be the new employer of the 2025 Transferring Employees for the following reasons:

• First, the employment of 2025 Transferring Employees with IMSB will be terminated and the 2025 Transferring Employees will become employees of the Applicant within 3 months after the termination of their employment with IMSB.

• Secondly, the work to be performed by the 2025 Transferring Employees for the Applicant will be the same or substantially the same as the work they have performed for IMSB.

• Finally, there is a 'connection' between the old employer (AIMSB) and the new employer (the Applicant) as described in s.311(5) of the Act.

• [17] Next it is necessary to consider s.318(3), which states that, in deciding whether to make an order under s.318(1), the Commission must take into account certain matters that are set out in ss.318(3)(a) to (g).

The views of the new employer and the employees who would be affected by the order

• [18] The Applicant submitted that it wishes for all employees (regardless of whether they are transferring or non-transferring employees), who perform the work covered by this application, to be covered by the 2025 Agreement.

• [19] The Applicant submitted that it is beneficial to maintain consistent employee entitlements for employees in the workplace. The Applicant submitted that if two agreements apply at the same time, it will create disparity and possible inequity between the 2025 Transferring Employees and other employees of Optus.

• [20] The Applicant submitted that, in its view, the 2025 Agreement is more favourable to employees as a whole compared to the 2022 Agreement.

• [21] The Applicant provided confidential, unredacted copies of email correspondence exchanged with the 2025 Transferring Employees. This correspondence confirms that the 2025 Transferring Employees' preference is to be covered by the 2025 Agreement.

• [22] I consider that these matters weigh in favour of granting the application.

Whether any employees would be disadvantaged by the order

• [23] The Applicant submitted that the proposed orders would not disadvantage any Transferring Employees.

• [24] The Applicant submitted that it has undertaken a comparison of the wages and conditions contained in the 2022 Agreement and 2025 Agreement, and that a number of more beneficial terms and conditions were introduced and are contained in the 2025 Agreement.

• [25] Having reviewed the comparisons provided to the Commission, I consider that the 2025 Transferring Employees will not be disadvantaged by the proposed orders. This consideration weighs in favour of granting the application.

• [26] The 2022 Agreement has a nominal expiry date of 30 March 2025, which as passed.

• [27] The 2025 Agreement has a nominal expiry date of 15 April 2028.

• [28] I consider that this weighs in favour of granting the application.

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

• [29] The Applicant submitted that if it is required to apply two separate enterprise agreements, this would reduce productivity in the workplace, particularly relevant to the effective operation of Optus' human resources and payroll functions.

• [30] I consider that this weighs in favour of granting the application.

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

• [31] The Applicant submitted that the economic disadvantage would be not insignificant if it is required to apply two separate enterprise agreements to employees performing the same work.

• [32] I consider that this weighs in favour of granting the application.

The degree of business synergy between the transferable instrument and any workplace instrument that covers the new employer

• [33] The Applicant submitted that there is a relatively significant degree of synergy between the 2022 Agreement (the transferable instrument) and the 2025 Agreement (the workplace instrument that already covers Optus), given that the 2025 Agreement replaced the 2022 Agreement.

• [34] I consider that this weighs in favour of granting the application.

• [35] The Applicant submitted that it is not against the public interest to grant the proposed orders.

• [36] I consider that this weighs in favour of granting the application.

• [37] Having considered the matters required by s.318 of the Act, I am satisfied and find that the Applicant's case has been substantiated, and that the Optus Employment Partnership Agreement (2025) will cover the 2025 Transferring Employees employed by Optus.

• [38] It is worth noting, that I was advised by the Applicant that the 2025 Transferring Employees who were previously employed by Optus will maintain their continuity of employment with the Applicant.

• [39] An Order will be issued with this Decision in PR792239.

[1] Fair Work Act 2009 (Cth), s.311, s.317.

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