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 under s 318 - Orders made.

• [1] Regis Aged Care Pty Ltd Trading AS Regis has made 2 applications to the Fair Work Commission for orders relating to transferable instruments.

• [2] The first application under matter AG2025/2484 relates to the Rockpool RAC (Morayfield) Pty Ltd Enterprise Agreement 2023. The Morayfield Agreement was approved by Deputy President Saunders ( [2023] FWCA 2438 AE521009 PR764918). It commenced operation on 11 August 2023, and its nominal expiry date is 3 August 2027.

• [3] The second application under matter AG2025/2485 relates to the Rockpool RAC Pty Ltd Enterprise Agreement 2023. The Rockpool RAC Agreement was approved by Deputy President Saunders ( [2023] FWC 2440 AE521011 PR764920). It commenced operation on 11 August 2023, and its nominal expiry date is 3 August 2027.

• [4] Regis is an aged care provider. It operates residential aged care homes throughout Australia, and 28 aged care homes in Queensland. Regis has entered a share purchase agreement under which it will become the ultimate holding company of Rockpool RAC (Morayfield) Pty Ltd ACN 607 029 550 and Rockpool RAC Pty Ltd ACN 607 029 372. Rockpool Morayfield and Rockpool RAC operate residential aged care services in 4 locations in Brisbane and Sunshine Coast in Queensland.

• [5] When Regis' share purchase is completed, it will become an associated entity of Rockpool Morayfield and Rockpool RAC. It intends to become the employer of employees of Rockpool Morayfield and Rockpool RAC. Regis seeks orders that the Morayfield Agreement and the Rockpool RAC Agreement do not apply to the transferring employees, and instead that its enterprise agreements apply to the transferring employees.

• [6] I am satisfied that the orders should be made. My reasons follow.

• [7] There are 2 industrial instruments that cover Regis' employees in Queensland:

• the Regis Aged Care Registered Nurses, Enrolled Nurses and Assistants in Nursing Queensland Agreement 2022; and
• the Regis Aged Care Support Services Staff, Queensland Agreement 2018.

• [8] The Regis Nurses Agreement was approved by Commissioner Hunt ([2023] FWCA 1257 AE519904 PR761582). It began operation on 10 May 2023, and its nominal expiry date is 30 June 2024. It covers all Registered Nurses, Enrolled Nurses and Assistants in Nursing in Queensland. The Regis Nurses Agreement covers the Australian Nursing and Midwifery Federation (ANMF).

• [9] The Regis Support Services Agreement was approved by Commissioner Booth ( [2020] FWCA 5822 AE509405 PR724134). It began operation on 6 November 2020, and its nominal expiry date is 31 December 2022. It covers all kitchen, laundry, maintenance, lifestyle, reception, gardening, home support and day therapy employees in Queensland. Both agreements exclude general and other managers. The Regis Support Services Agreement covers the Australian Workers' Union (AWU) and the United Workers' Union (UWU).

• [10] Both the Morayfield Agreement and the Rockpool RAC Agreement cover nursing and hospitality, administration, personal care workers, lifestyle and maintenance employees who are employed by Rockpool Morayfield or Rockpool RAC at facilities in Queensland. All employees who are covered by the Morayfield and Rockpool RAC agreements are Transferring Employees.

• [11] 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 Rockpool Morayfield and Rockpool RAC. The connection between Regis and Rockpool Morayfield and Rockpool RAC fits within s 311(6), as Regis will become an associated entity of Rockpool Morayfield and Rockpool RAC when the share purchase completes.

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

• [13] 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.

• [14] 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. It supports the making of the orders. Key reasons that it seeks the orders are to ensure uniformity of industrial regulation and to maintain its current state-based approach. Regis gave evidence that its long-established practice is to apply uniform terms and conditions of employment to common work groups in each state or territory; unlike Rockpool Morayfield and Rockpool RAC, it does not have enterprise agreements that apply to particular facilities.

• [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] I issued directions that required Regis to serve its application and my directions on transferring employees and each of the Unions covered by the Regis agreements. My directions allowed for Transferring Employees to confidentially provide their views to my Chambers only. I did not receive any views from Transferring Employees.

• [17] Regis gave evidence of its communications from 23 July 2025 with Transferring Employees. Those communications included written information as well as online and in-person meetings at each of the Rockpool Morayfield and Rockpool RAC facilities. Regis provided copies of its application to Transferring Employees, as well as a frequently asked questions document and guides and summaries of the key terms and conditions of the Regis agreements as compared with the Rockpool agreements. Copies of all materials provided to Transferring Employees were also provided to me.

• [18] The ANMF is covered by the Regis Nurses Agreement and has members who are employed by Rockpool Morayfield and Rockpool RAC who are covered by the Morayfield Agreement and the Rockpool RAC Agreement. The ANMF filed submissions that addressed several matters about how terms and conditions of employment differed under the respective agreements. As a result of those submissions, Regis has offered undertakings. I will address those matters further below.

• [19] Neither AWU nor UWU provided any views to my Chambers about the applications.

• [20] 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, and that their views 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

• [21] There are differences between the agreements relating to:
  • classification structure;
  • minimum qualification and experience requirements;
  • progression through pay points;
  • rates of pay and allowances; and
  • shift and work patterns.

• [22] Regis provided me with comparison documents that compared the Morayfield Agreement and the Rockpool RAC Agreement with the Regis Nurses Agreement and the Regis Support Services Agreement. The Regis Nurses Agreement covers registered and enrolled nurses; the Regis Support Services Agreement covers kitchen, laundry, maintenance, lifestyle, reception, gardening, home support and day therapy employees (generally, employees who would otherwise be covered by the Aged Care Award 2010). The Rockpool agreements cover all employees who would otherwise be covered by the Aged Care Award and registered and enrolled nurses at locations that are operated by the respective corporate entities (Rockpool Morayfield or Rockpool RAC).

• [23] Some examples of how the Regis Nurses Agreement provides more beneficial terms than the Rockpool agreements for registered and enrolled nurses include that the Regis Nurses Agreement:

• provides for pay point progression after completion of 1,200 hours (compared with 1,786 hours under Rockpool agreements);
• has more beneficial minimum engagement periods for part time and casual employees (3 ordinary hours, compared to 2 in the Rockpool agreements but noting that under the Rockpool agreements, a full-time employee has a minimum shift length of 4 hours, and no similar provision exists in the Regis Nurses Agreement);
• guarantees at least 2 consecutive days off in a roster pattern;
• provides for Accrued Days Off, which the Rockpool agreements do no
• provides for higher weekend penalty rates for casual employees but public holiday penalty rates are higher for casual employees under the Rockpool agreements;
• provides for more paid parental leave (6 weeks, as compared with 4 weeks under the Rockpool agreements);
• does not require that training is undertaken during rostered hours and pays for training at relevant rates, including loadings, overtime and penalty rates;
• provides for 5 days paid professional development leave per year (compared with 3 days under the Rockpool agreements);
• provides for 2 days of Union Representation Training Leave per year; and
• has higher redundancy payment entitlement for employees with more than 9 years' service (the Rockpool agreements contain the same entitlement as the National Employment Standards).

• [24] Some examples of how the Regis Support Services Agreement provides more beneficial terms than the Rockpool agreements for kitchen, laundry, maintenance, lifestyle, reception, gardening, home support and day therapy employees include that the Regis Support Services Agreement:

• provides for pay point progression after completion of 1,200 hours (compared with 1,786 hours under Rockpool agreements);
• has more beneficial minimum engagement periods for part time and casual employees (3 ordinary hours, compared to 2 in the Rockpool agreements but noting that under the Rockpool agreements, a full-time employee has a minimum shift length of 4 hours, and no similar provision exists in the Regis Nurses Agreement);
• provides for higher overtime rates of pay for time worked in excess of 8 ordinary hours or in excess of rostered ordinary hours;
• Afternoon shift loading commences earlier for PCWs under the Regis Support Services Agreement;
• Night shift loading is higher, although when the loading applies is different;
• Does not cap the amount of the nauseous work allowance; and
• Provides for higher redundancy payment after completion of 9 years' service (compared with the Rockpool agreements, which is the same as the National Employment Standards).

• [25] Unlike the Rockpool agreements, the Regis agreements do not include provisions relating to:

• recall to work; and
• time in lieu for overtime payments

• [26] The Regis agreements differ from the Rockpool agreements in relation to:

• definition of seven day shiftworker for the purposes of the additional week of annual leave under the National Employment Standards;
• maximum shift lengths;
• meal breaks;
• allowances; and
• definitions of morning, afternoon and night shift times.

• [27] A key issue is that wages under the Rockpool agreements is higher than under the Regis agreements. Regis has provided an undertaking to maintain the higher rates of pay of Transferring Employees.

• [28] The ANMF also raised particular matters where employees would be disadvantaged under the Regis agreements than under the Rockpool agreements, including in relation to
  • allowances that are not payable under the Regis agreements;
  • higher penalty rates for personal care workers who are employed on a casual basis and
  • accrual of an additional week of leave for certain employees defined more beneficially as shiftworkers under the Rockpool agreement.

• [29] Regis has provided undertakings in relation to each of those matters.
• [30] Having considered the above matters and taking into account Regis' undertakings (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

• [31] Both Rockpool agreements have the same nominal expiry dates: 3 August 2027. There are two further wage increases in July 2026 and July 2027.

• [32] Both Regis agreements have passed their nominal expiry dates; for the Regis Nurses Agreement it was 30 June 2024 and for the Regis Support Services Agreement it was 31 December 2022.

• [33] Bargaining has not yet commenced for any replacement agreements. Regis says that when it bargains for replacement agreements, it wishes for Transferring Employees to participate in that bargaining.

• [34] Not making the orders sought would have the effect of preventing Transferring Employees from participating in bargaining in their new workplace but as bargaining has not yet commenced and there are wage increases available under the Rockpool agreements, this is a factor that neither weighs in favour nor against the making of the orders.

• [35] Regis submits that there is the potential for industrial disharmony.

• [36] The Transferring Employees will not, at least initially, work alongside employees who are currently covered by the Regis agreements. In two reasonably foreseeable circumstances, there will be employees working alongside each other who have different terms and conditions of employment. First, current employees of Regis who are offered shifts to work at a Rockpool facility would work alongside Transferring Employees; Regis gave evidence that it has a practice of offering additional shifts to employees at facilities that are near their usual place of work. Second, new, non-transferring employees who start work at any Rockpool facility will be covered be covered by the Regis agreements.

• [37] Regis gave evidence that it has current employees who are also employees of Rockpool Morayfield or Rockpool RAC. Regis submits that if the orders are not made, both sets of industrial instruments would continue to apply to those employees. Confusion may then arise about when a particular industrial instrument applied. I do not have any evidence about how many employees would be affected.

• [38] Differences in classifications and progression pay points may also result in industrial disharmony. The Rockpool agreements have 5 levels of Enrolled Nurses (compared with 3 levels in the Regis agreements) and 6 levels of Personal Care Workers (compared with 3 levels of Assistants in Nursing, which Regis says is the equivalent of Rockpool's Personal Care Worker classification). There are also slightly different duties in the classifications and different minimum qualifications and experience requirements for certain levels/grades of nursing employees. Pay point progression is more rapid under Regis agreements, which require completion of 1,200 hours, compared with 1,786 hours under the Rockpool agreements.

• [39] Regis further submit that there would be administrative and operational inefficiencies as it would need to modify payroll, time and attendance systems to account for the different agreements. The Regis agreements provide for accrued days off for full-time employees, which the Rockpool agreements do not. The Rockpool agreements provide for time off in lieu of payment for overtime, which the Regis agreements do not. This may lead to difficulties when arranging rosters and cause confusion among employees about their entitlements. Regis also submit that it would complicate its ability to ensure quality of care.

• [40] Last, Regis submit that there is an increased risks of an inadvertent breach of enterprise agreements if the Rockpool agreements continue to apply to Transferring Employees.

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

• [42] Regis submit that it would incur costs as it needs to establish and maintain separate and additional administrative arrangements, as well as separate work practices, if the Rockpool agreements continue to apply to Transferring Employees. It submits that over time, such costs could be substantial.

• [43] 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 Queensland, and the acquisition of the Rockpool facilities increases its economic advantage. I am of the view that this factor neither weighs in favour nor against the making of the orders.

• [44] Regis submits that there is a lack of business synergy for the following reasons:

• the approach to industrial regulation is different (Rockpool has an agreement for all employees employed by a particular entity at worksites, whereas Regis applies state-wide agreements to particular work streams);
• different classification structures, minimum qualification and experience requirements and pay progression points (I have detailed these above);
• accrued days off and rostering arrangements;
• difference in when shift loadings are payable; and
• differences in when overtime is payable.

• [45] I am persuaded by Regis' submissions that there is a lack of business synergy between the Regis agreements and the Rockpool agreements. This factor weighs in favour of making the orders.

• [46] 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).

• [47] 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, including higher rates of pay, for Transferring Employees. Those undertakings, together with allowing it to conduct its business efficiently to serve the community persuades me that this factor weighs in favour of making the orders.

• [48] I have considered each of the matters under s 318 and am satisfied that I should make the orders sought. An order will issue separately.

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