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

• [1] An application has been made by Respect Group Limited (the Applicant or Respect) to the Fair Work Commission (the Commission) for an order pursuant to s.318 of the Fair Work Act 2009 (the Act). The Applicant seeks orders that the Chaffey Aged Care Enterprise Agreement 2022-2024 (Chaffey EA) not cover transferring employees within the meaning of s.311(2) of the Act who transferred their employment from Rural Care Australia Limited to Respect Group Limited and that the RESPECT GROUP LIMITED, VICTORIAN ENTERPRISE AGREEMENT 2024 (Respect EA) will apply to those transferring employees.

• [2] The application consisted solely of a Form F40 - Application for orders in relation to transfer of business.

• [3] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) are covered by the Chaffey EA.

• [4] My Chambers wrote to the Applicant on 21 August 2025 expressing my provisional view that the orders sought could be made based on the material provided. I invited any party who wished to be heard in the matter to advise my Chambers by close of business on 25 August 2025 and the Applicant was directed to serve that email to the relevant unions.

• [5] On 25 August 2025 the ANMF wrote to my Chambers seeking an extension until 5 September due to the relevant ANMF organiser being unavailable. In that email the ANMF stated that they agree orders can be made and that on analysis employees appear to be better off under the Respect EA however their members have been bargaining for an extended period of time and the ANMF sought to have meeting with their members to field any questions about the process.

• [6] My Chambers wrote to the parties on 26 August 2025 advising that such an extension would not be granted but that the matter would be listed for Hearing on 29 August 2025 to allow any party who wanted to be heard to express their views. The Applicant was directed to forward that invitation to all transferring employees and did so the same day.
• [7] Ms Kerri Hooper, Industrial Relations Specialist, attended the Hearing on behalf of the Applicant. Mr Cameron Granger appeared on behalf of the ANMF and Mr Danny Harika appeared on behalf of the HSU.

FAIR WORK ACT 2009 - SECT 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:

(a) the views of:

(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;

(g) the public interest.

(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;

(b) the day on which the order is made.

• [8] Section 311 of the Act sets out when a transfer of business occurs. On the evidence before me, as set out in the Form F40 and the submissions, all of the elements of s.311(1) of the Act have been met and therefore, a transfer of business has occurred within the meaning of the Act.

• [9] Section 312 of the Act details instruments that may transfer:

(1) Each of the following is a transferable instrument:

(a) an enterprise agreement that has been approved by the FWC;

(b) a workplace determination;

(c) a named employer award."

• [10] The Agreement was approved by the Commission on 28 February 2023 and pursuant to s.312(1) of the Act is a transferrable instrument.

• [11] The application has been made by Respect, the new employer. The requirement under s.318(2) has therefore been met.

Section 318(3) - Matters that the FWC must take into account

• [12] The grounds relied on by the Applicant which are set out in the application are outlined below.

Section 318(3)(a)(i) - the views of the new employer

"The Applicant will become the new employer of the majority of individuals presently employed by Rural Care Australia Limited, who are currently covered by the Chaffey Agreement. Those employees of Rural Care Australia Limited who accept the Applicant's offer of employment (Transferring Employees) will commence employment with the Applicant on 25 August 2025.

The Transferring Employees stand to benefit materially from being covered by the Respect Agreement, as its adoption would foster a single, harmonious workplace culture, establish greater consistency and certainty in employment terms, and thereby enhance productivity and operational efficiency.

Should the requested orders not be granted, the workforce's productivity will be adversely affected due to the complexities of administering two distinct enterprise agreements. This dual-agreement framework risks confusing employees, introducing inefficiencies and increased costs, complicating payroll and related systems, and heightening the likelihood of administrative errors and workplace disputes."

• [14] I have taken into account the views of the new employer including the effect of not granting the application. In the circumstances, this matter weighs in favour of making the order sought.

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

• [15] In their application the Applicant submits that:

"On 13 August 2025, the Applicant notified the Transferring Employees of the acquisition.

On 14 August 2025 the Applicant notified the transferring Employees Union representatives via email of its intention to apply to the Fair Work Commission under Section 318 of the Fair Work Act 2009."

• [16] These submissions do not tell what kind of views the employees may hold. However, as mentioned above both unions and all transferring employees were invited to attend the Hearing on 29 August 2025 to express any views they may have. However, as stated employees were invited to attend the Hearing if they wished to express any views however, no employees chose to attend the Hearing. There was an email received from an employee who was concerned as to a possible disadvantage of the order being made which I have dealt with below. However, both unions that represent relevant employees confirmed at the Hearing that they were supportive of the orders being made. Consideration of this factor weighs in favour of making the order sought.

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

• [17] In their application the Applicant submitted that:

"Transferring employees will, for the most part, benefit from overall terms and conditions that are stable and predictable under the Respect Agreement compared to those in the current expired Chaffey Agreement such as better wages. Consequently, the proposed orders are expected to result in improved employment conditions for the vast majority of employees, ensuring that no one is disadvantaged by the transfer."

• [18] Mr Granger indicated that they a meeting had been held with employees and the only concern that had been raised was in relation to penalties that applied to Saturday and Sunday work particularly for casual registered and enrolled nurses. Mr Granger also acknowledged that this was the only circumstance where they found employees may be disadvantaged.

• [19] My Chambers also received an email from an employee on 28 August 2025 expressing concerns about spare shifts being offered to part-time employees first under the Respect EA whereas under the Chaffey EA they are offered first to casual employees first. While I agree that this is disadvantageous to casual employees it can also be seen as more beneficial term from the perspective of part-time employees.

• [20] Ms Hooper made submissions at the Hearing to several more beneficial entitlements under the Respect EA such as considerably higher wages, increased public holiday penalties and improved access to certain leave provisions. Ms Hooper also addressed the concern raised by the employee as to the change in preference for spare shifts to permanent employees, stating that they are in rural locations and shifts are hard to fill and, in her experience, casuals have had no problems picking up work.

• [21] Neither union challenged the oral submissions made by Ms Hooper.

• [22] I have taken into account whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment. Whilst I acknowledge the matter raised by Mr Granger about the weekend penalties for nurses to be less beneficial and the change in preference for spare shifts raised by the employee, taking into account the submissions of Ms Hooper, I'm satisfied that overall employees will not be disadvantaged by the order in relation to their terms and conditions of employment. This is a factor that weighs in favour of making the orders sought.

Section 318(3)(c) - if the order relates to an enterprise agreement - the nominal expiry date of the agreement

• [23] The Chaffey EA has a nominal expiry date of 30 November 2024 whereas the Respect EA has a nominal expiry date of 30 June 2028. The Applicant submits that transferring employees will therefore have a greater period of certainty regarding their terms and conditions of employment if the orders are made.

• [24] This matter is a matter which weighs in favour of making the order sought.

Section 318(3)(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace

"... failing to grant the proposed orders would adversely affect workforce productivity. This is due to the necessity of managing two enterprise agreements at the same site, especially as new employees will be engaged under the Respect Agreement. Implementing the Chaffey Agreement alongside the Respect Agreement would introduce significant inefficiencies and complexities. These include the maintenance and administration of divergent payroll and other systems, which would, in turn, hinder productivity leading to incorrect payments and increased manual adjustments.

Granting the proposed orders would enable administrative simplicity, promote organisational competency, and enable the Applicant to provide internal equity in the

terms and conditions of employment between the Transferring Employees and its existing employees."

• [26] I have taken into account whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace. I am satisfied that there would be additional administrative tasks in having the two enterprise agreements apply which may cause a negative impact of the new employer. In the circumstances, this matter weighs in favour of making the order sought.

Section 318(3)(e) - whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer

"... it would incur significant economic disadvantages if the proposed orders are not granted.

The costs associated with establishing and administering two separate configurations and interpretations of rostering and payroll for Transferring Employees and the Applicant's existing employees would be economically inefficient, create confusion among employees, and present ongoing challenges for the Applicant. This dual system would negatively impact operations, which in turn would affect productivity and result in adverse economic consequences.

Having all employees on the same site performing work under a single enterprise agreement and being paid according to that single industrial instrument would likely reduce the administrative burden associated with processing payroll under two industrial instruments. This approach would also help avoid potential disputes and the associated costs of resolving such disputes."

• [28] I have taken into account whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer. I am not satisfied that the employer would incur significant economic disadvantage. In the circumstances, this is a neutral consideration.

Section 318(3)(f) - the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer

"...there is a lack of business synergy between the Chaffey Agreement and Respect Agreement. This absence of synergy would likely give rise to the operational and administrative issues previously described, including the need to manage two separate sets of terms and conditions, rostering systems, and payroll processes. Such duplication would not only increase administrative complexity but also heighten the risk of confusion among employees and management, potentially leading to disputes and inefficiencies."

• [30] I have taken into account the degree of business synergy between the Chaffey EA and the Respect EA that already covers the new employer. I am satisfied that the making of the orders would promote business synergy. In the circumstances, this matter weighs in favour of making the orders sought.

Section 318(3)(g) - the public interest

• [31] The Applicant did not make any submissions in relation to public interest.

• [32] I don't believe there is any particular factor relevant to the public interest that relates to this application. There is certainly nothing to indicate that making the order would be contrary to the public interest. I consider that this factor a neutral consideration.

• [33] Having considered the matters above, it is apparent that all matters either weigh towards the granting of the application sought or are neutral. Taking into account each of the matters set out in s.318(3) of the Act, I am satisfied that the order as sought should be granted. The order[1] will be issued concurrently with this decision.

• [34] The order will come into operation on 1 October 2025 pursuant to s.318(4)(a) of the Act.

C Granger, for the Australian Nursing and Midwifery Federation

[1] PR791108.

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