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

Application for Orders relating to instruments covering new employer and transferring employees - Orders made

• [1] Regis Aged Care Pty Ltd Trading AS Regis has applied under s 318 of the Fair Work Act 2009 (Cth) for orders in relation to a transferable instrument, the Sitka HR Pty Ltd, ANMF and HSU Enterprise Agreement 2022.

• [2] Regis is an aged care provider. It operates 72 residential aged care homes throughout Australia, and with its related entities employees over 13,500 employees. Regis has entered a share purchase agreement under which it will become the ultimate holding company of OC Health and

• [3] The Sitka Agreement 2022 was approved by Deputy President Masson on 1 February 2023 ( [2023] FWC 314 ). It commenced operation on 8 February 2025, and its nominal expiry date was 1 May 2025. The Agreement applies to Sitka HR Pty Ltd and its employees who are Enrolled and Registered Nurses, Personal Care Workers, Leisure and Lifestyle employees and General Services, Food Services and Administration/Clerical Services employees employed in Sitka's operations in Victoria, including operations that it acquired subject to the Act's transfer of business provisions (together, the Transferring Employees). The approval decision noted that the Agreement covers the Australian Nursing and Midwifery Federation (ANMF).

• [4] Sitka is part of a corporate group that includes OC Health Torquay Pty Ltd and Drysdale Aged Care Pty Ltd. OC Health operates a residential aged care home in Torquay, Victoria. Drysdale operates a residential aged care home in Drysdale, Victoria. Sitka is the employer of the employees who perform work in the homes operated by OC Health and Drysdale.

• [5] In October 2025, Regis entered into a share purchase agreement under which it will become the ultimate holding company of OC Health and Drysdale. As part of the share purchase agreement, Regis offered employment to employees of Sitka. While the offer includes that terms and conditions of employment will be overall no less favourable than the employees' conditions of employment when employed by Sitka, Regis seeks an order that the Sitka Agreement not apply to the Transferring employees, and instead that the Regis Aged Care Pty Ltd, ANMF & HWU Enterprise Agreement - Victorian 2025 will cover the Transferring Employees.

• [6] The Regis Agreement was approved by me on 1 September 2025 ( [2025] FWCA 2929 ). It began operation on 8 September 2025, and its nominal expiry date is 1 July 2027.

• [7] In support of its application, Regis provided submissions, a witness statement of Ms Claire Slattery, General Manager - Workplace Relations and an undertaking following receipt of submissions from ANMF and employees. ANMF and HSU were provided with an opportunity to make submissions. Employees were also provided with an opportunity to make submissions, including by providing submissions only to the Commission. The Commission received a confidential submission and informed the employer of the general nature of the submission to allow them the opportunity to respond.

• [8] Having considered all the materials, I am satisfied that the orders should be made. I issued the orders on Friday 28 November 2025 indicating that I would publish my reasons later. These are my reasons for the order.

• [9] Section 317 of the Act provides that the Commission may make the type of orders sought (under s 318) where there is a transfer of business. Because of the share purchase, I am satisfied that that there will be a transfer of business for the purposes of s 311 of the Act and that employees will perform work for Regis that is the same, or substantially the same, as the work performed for OC Health and Drysdale.

• [10] The connection between Regis and OC Health and Drysdale fits within s 311(6), as Regis will become an associated entity of OC Health and Drysdale when the share purchase completes.

• [11] Regis is the new employer and may therefore make the application under s 318(2)(a).

• [12] In deciding whether to make the order, I must take into account the matters in s 318(3). I deal with each in turn below.

• [13] Regis is the new employer and has made the application. Regis filed submissions and a witness statement of Ms Claire Slattery - General Manager in support of their application. Regis clearly supports the making of the orders. Regis has a strong preference to maintain its long-established practice of having employees in common work groups in each state or territory under uniform terms and conditions. Regis says that it does not have enterprise agreements that apply to particular homes. The Sitka Agreement 2022 is a similar approach in that it also applies to all employees in various work groups in Victoria.

• [14] Further, Regis submitted that a uniform industrial approach would ensure a unified workforce, prevent negative impacts on productivity and maximise business synergy. Regis was also concerned about administrative and operational inefficiencies and the potential risk of incorrect application of entitlements. Last, Regis said that the order would enable more efficient and beneficial negotiations of future terms and conditions of employment for its Victorian workforce.

• [15] I am of the view that this factor weighs in favour of making the order.

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

• [16] Ms Slattery gave evidence that Regis communicated to Sitka employees about the purchase agreement and transfer of their employment, which included a 'frequently asked questions' document. Regis also issued individual employment offers to Sitka employees and conducted drop-in sessions at the homes operated by OC Health and Drysdale. Ms Slattery gave evidence that employees attended those sessions and asked questions.

• [17] I issued directions that required Regis to serve its application and my directions on Transferring Employees and each of the unions covered by the Sitka Agreement 2022 and the Regis Agreement. My directions allowed for Transferring Employees to provide submissions confidentially to my Chambers only.

• [18] A Transferring Employee provided submissions; these were de-identified and provided to Regis to allow them to respond.

• [19] The ANMF is covered by the Sikta Agreement 2022 and the Regis Agreement. HSU is covered by the Regis Agreement. I note that there is an error in the approval decision for the Regis Agreement and will be shortly correcting that error, as ANMF and HSU notified the Commission that they wished to be covered by the Agreement prior to the date the agreement was approved. The ANMF provided submissions to which Regis responded and addressed concerns by providing undertakings (referred to further below).

• [20] The HSU did not provide any submissions.

• [21] I am satisfied that employees who would be affected by the order and their representatives have had an opportunity to provide their views in relation to this application. I have considered those views, together with Regis' response, and am satisfied that they weigh in favour of making the orders.

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

• [22] There are differences between the agreements relating to:

• Classification structures, in that the Sitka Agreement 2022 contains classifications that the Regis Agreement does not and differences in minimum qualifications and experience requirements for certain levels/grades of nursing employees;

• Pay rates, in that the Regis Agreement has (1) higher base rates of pay, (2) higher weekend penalty rates and overtime rates (although under the Sitka Agreement 2022, overtime rates are payable to some employees earlier than they would be under the Regis Agreement) and (3) some higher allowances, although some allowances that are separately paid under the Sitka Agreement 2022 (such as the nauseous allowance) are factored into the higher base rate of pay under the Regis Agreement, some allowances (such as the qualifications allowance) are more beneficial for different cohorts under one agreement than the other, and some allowances (such as the Leader allowance) do not exist under the Regis Agreement.

• Hours of work, in that (1) shift length and shift patterns are different in both instruments, (2) minimum breaks between shifts are different (under the Sitka Agreement 2022, it is 8 hours, whereas under the Regis Agreement it is 10 hours); and (3) the Regis Agreement provides for a rest break after an employee works 4 hours of overtime, which the Sitka Agreement 2022 does not provide;

• Shift work and penalties, in that under the Regis Agreement, loadings are paid as a percentage of an employee's hourly base rate of pay, whereas under the Sitka Agreement 2022, loadings are calculated on the weekly rate; and

• Personal Leave, in that the Sitka Agreement 2022 provides for a higher quantum of personal leave.

• [23] The ANMF also raised particular matters where employees would be disadvantaged under the Regis Agreement than under the Sitka Agreement 2022, such as minimum engagement, change of shift allowance, meal breaks, overtime, public holiday penalty rates, nauseous allowance and dirty and offensive work, qualification allowances, leader allowance, on-call allowance, definition of shiftwork, and personal leave.

• [24] Regis provided undertakings to address some, but not all, the matters raised by ANMF. Regis provided submissions about the matters that it did not address in its undertakings, and I accept those submissions address that there are differences, but these do not necessarily result in disadvantage. I have had regard to Ms Slattery's evidence that, based on reviewing data it received from Sitka, certain allowances that do not exist under the Regis Agreement (change of shift, leader, on-call) were not paid or rarely paid, and this indicated there were not used (rather than that there were compliance concerns). I have also had regard to the higher base rate of pay under the Regis Agreement, and that individual offers of employment offered employment in classifications equivalent to or higher than their current classification and provided that their terms and conditions would be no less favourable.

• [25] Having considered the above matters and taking into account Regis' undertaking, which is appended to this decision, I am satisfied that employees will not be disadvantaged by the making of the orders, and that this factor weighs in favour of making the order.

318(3)(c) - the nominal expiry date of relevant enterprise agreement

• [26] The Sitka Agreement 2022 has passed its nominal expiry date, which was 31 May 2025. The Regis Agreement's nominal expiry date is 1 July 2027. This means that if the Sitka Agreement 2022 applies to the Transferring Employees, they do not have any further wage increases. I do not have any information about whether there are currently negotiations underway for a replacement agreement to the Sitka Agreement 2022.

• [27] Under the Regis Agreement, there is one further wage increase on 1 September 2026, and the agreement provides that the employer will apply the wage increase to any uplifted rates as a result of the Commission's determinations in the Aged Care Work Value Case.

• [28] I am of the view that this factor weighs in favour of making the order.

• [29] Regis submits that there is the potential for industrial disharmony: if the Sitka Agreement 2022 continues to apply to the transferring employees, employees will be working alongside each other on different rates of pay, different classification and with differing shift patterns. Regis also submit that the differing shift patterns under the agreements would result in difficulties in rostering arrangements that could cause confusion among employees and managers about overtime and other entitlements, and complicate Regis' ability to ensure quality and continuity of care. Regis further submit that there would be administrative and operational complexities and costs, as it would need to modify payroll, time and attendance systems to account for the different agreements.

• [30] I accept these submissions and am of the view that this factor weighs in favour of making the orders.

318(3)(e) - significant economic disadvantage

• [31] Regis submit that it could suffer significant economic disadvantage if the Sitka Agreement 2022 continued to apply to the Transferring Employees due to the need to establish and maintain separate and additional administrative arrangements. I accept these submissions but am not persuaded that significant economic disadvantage results. Regis is a large operator of age cared facilities in Australia and in Victoria, and the acquisition of the OC Health and Drysdale homes increases its economic advantage.

• [32] I am of the view that this factor neither weighs in favour nor against the making of the orders.

• [33] Regis submits that there is a lack of business synergy between the Sitka Agreement 2022 and the Regis Agreement in that there is a different classification structure, different minimum qualifications and experience requirements and differences in shift patterns.

• [34] I am persuaded by Regis' submissions that there is a lack of business synergy and consider that this factor weighs in favour of making the orders.

• [35] The Full Bench's decision in GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27] identifies that determining whether a matter raises the public interest is a discretionary value judgment, and that considering whether a matter raises issues of importance and general application may engage the public interest. Relevant to this type of application, the objects of the Act in Part 2-8 Transfer of Business are to provide a balance between the protection of employees' terms and conditions and the interests of employers in running their enterprises efficiently (s 309).

• [36] Regis submit that making the orders is in the public interest because residential aged care is an increasingly important service for the community. Regis has given undertakings to ensure continuity of more advantageous terms and conditions of employment for Transferring Employees. Allowing it to conduct its business efficiently to serve the community persuades me that this factor weighs in favour of making the orders.

• [37] I have considered each of the matters under s 318 and am satisfied that I should make the orders sought. I issued an order on 28 November 2025.

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