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

The Frank Whiddon Masonic Homes Of New South Wales trading as The Whiddon Group

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

• [1] On 30 September 2025 I made an order[1] under s.318 of the Fair Work Act 2009 (Cth) (Act) and indicated that my reasons for doing so would follow. These are those reasons.

• [2] The Frank Whiddon Masonic Homes of New South Wales trading as The Whiddon Group (applicant, or Whiddon) has applied for an order under s.318(1) of the Act. The application arises from an agreement to transfer the property and assets of the aged care business known as Mareeba Aged Care from Maclean Valley Nursing Home Pty Ltd (Maclean) to the applicant. The transfer is proposed to take final effect by no later than 1 October 2025. One consequence of the transfer is that the applicant will begin to employ 131 employees of Maclean (Transferring Employees) whose employment is presently covered by the Maclean Valley Nursing Home Pty Ltd trading as Mareeba Aged Care NSWNA & HSU East Branch Enterprise Agreement 2012 (Mareeba Agreement).

• [3] The effect of the order sought by the applicant is to displace the operation of s.313(1) of the Act such that the Transferring Employees would no longer, upon transfer of their employment to the applicant, be covered by the Mareeba Agreement but would instead be covered by The Whiddon Group Agreement 2017 (Whiddon Agreement).

• [4] The circumstances giving rise to the application are set out in detail in the written submission filed by the applicant in support of application and may be summarised as follows. The applicant is a not-for-profit provider of residential aged care, community care, disability care, and retirement living services. It operates a range of nursing homes and retirement housing, providing care to over 3,000 people across New South Wales and Queensland. Whiddon and Maclean entered into a purchase and sale agreement for the sale of property and assets to the applicant, the effect of which is that Whiddon will purchase Maclean's aged care business known as Mareeba Aged Care.

• [5] It is intended that Whiddon will employ the Transferring Employees and will generally take over operations of Mareeba Aged Care. As a result, it is intended that the Transferring Employees will cease to be employed by Maclean and will instead be employed by Whiddon, performing the same or substantially the same work (Transferring Work).

• [6] Offers of employment have been made to the Transferring Employees by Whiddon, on terms and conditions which are substantially similar to the employees' terms and conditions with Maclean. The offers of employment were conditional on the sale of the business being finalised which was expected to occur on 1 October 2025. The Transferring Employees were expected to commence their employment with Whiddon on the later of 1 October 2025, the date the Commission makes the proposed orders or, if the orders are not made, 6 months after the completion of the sale

• [7] When the Transferring Employees commence employment with Whiddon, a transfer of business in accordance with section 311(1) of the Act will occur.

• [8] The Mareeba Agreement is a transferable instrument by operation of section 312(1)(a) of the Act. Section 313 of the Act provides that a transferable instrument that covered the old employer (i.e. Maclean) and the transferring employees immediately before the termination of the employment, will cover the new employer (being Whiddon). The operation of these sections means that Whiddon will be covered by the Mareeba Agreement in relation to the Transferring Employees, subject to any order of the Commission made pursuant to section 318 of the Act.

• [9] Whiddon seeks an order pursuant to section 318(1)(a) of the Act, to displace the operation of section 313(1) of the Act. The effect of such an order is that Whiddon and the Transferring Employees would instead be covered by the Whiddon Agreement.

• [10] The proposed order is in the following terms:

1. (a) that the Maclean Valley Nursing Home Pty Ltd trading as Mareeba Aged Care NSWNA & HSU East Branch Enterprise Agreement 2012 will not cover transferring employees of Maclean Valley Nursing Home Pty Limited who perform, or are likely to perform, transferring work for the Applicant; and

(b) that The Whiddon Group Agreement 2017 will cover the transferring employees of Maclean Valley Nursing Home Pty Limited who perform, or are likely to perform, transferring work for the Applicant (Order).

1. In accordance with s.318(4), this Order shall take effect in respect of each transferring employee on and from [date of order], or the date from which employment with the Applicant commences, whichever is the later.

• [11] After the filing of the application, I directed the applicant to serve a copy of the application, the supporting material and the directions themselves, on the following:

(a) All other parties to the transferable instrument including the transferring employees (as referred to in the application); and

(b) Any employee organisation that ordinarily represents the industrial interests of the transferring employees.

• [12] The parties referred to above were then directed to file and serve any material in response to the application by 24 September 2025. The Australian Nursing and Midwifery Federation (AMNF) filed a written submission in response to those directions and indicated that it consented to the making of the orders sought by the applicant. No other submissions were received. The matter has been determined on the basis of written material supplied by the applicant, including a statutory declaration by Ms. Hopwood the applicant's Chief People Officer, and the ANMF.

• [13] Section 317 and 318 of the Act are in the following terms:

317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

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;

• [14] Section 311 sets out the circumstances in which a transfer of business occurs. It is unnecessary to set the section out in full. The uncontested submission establishes that there are transferring employees (as defined in s.311(2)) in relation to a transfer of business (as defined in s.311(1)) which has occurred or is likely to occur.[2] The applicant has standing to make the application under s.318(2)(a) and the proposed order is an order of the kind contemplated by s.318(1)(a). I turn then to consider the matters listed in s.318(3) to determine whether the proposed order should be made.

Submissions and Conclusions on the Statutory Criteria

• [15] The applicant made the following submissions in relation to the statutory criteria set out in s.318(3).

Subsection 318(3)(a)(i) - views of the new employer, or a person who is likely to be the new employer

• [16] The applicant is the proposed new employer and supports the making of the proposed order. The applicant submits that the proposed order will:

(a) ensure parity in remuneration and rostering arrangements between the Transferring Employees and the non-transferring employees of Whiddon when they will both be performing the same or similar work for the same employer;

(b) having parity of employment terms and conditions across the workforce will maintain productivity and employee motivation and morale;

(c) provide ease of administration in rostering and payroll in continuing to implement established industrial instruments, rather than applying different industrial instruments for different employees performing the same or similar work; and

• [17] The applicant contends that overall, the Whiddon Agreement offers superior entitlements.

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

• [18] The applicant submitted that the employees favoured the making of the proposed order. They relied on the responses to the offers of employment made on 18 August 2025 to the Transferring Employees, the advice to those employees that it would be making the present application and the provision to the employees of a document setting out the terms and conditions that would apply to the Transferring Employees if the application was successful. In response to the offers of employment, 118 employees accepted the offer, no employees rejected the offer and 13 employees did not respond.

• [19] In the correspondence of 18 August 2025, the Transferring Employees were also advised that they would be sent a poll asking them whether or not they approved of the present application. In response to that poll, 89 of the Transferring Employees or approximately 97% of the voting cohort approved of Whiddon's proposal to make the Application. The Applicant said this result followed on from a significant consultation process with the Transferring Employees which included five information sessions between 12 August 2025 to 15 August 2025 and by providing them with relevant information in relation to the proposal to make the application, including by way of an online portal provided in the 18 August 2025 letter. The Applicant said that as a result of the steps taken, the Commission can be satisfied that the other 40 Transferring Employees (who did not respond to the survey) had no objection to Whiddon's proposal to make the Application.[3]

• [20] Further, the applicant submitted that the three unions that were listed as parties to the Mareeba Agreement and the Whiddon Agreement and the Transferring Employees had been notified of the proposed application and at least one union representative had attended an information session conducted in relation to the proposed application and raised questions in relation to the matter and had received a written response to the issues raised.

• [21] The ANMF also submitted that it had sought the views of its members employed by Maclean about the transfer and that in response it had received a single inquiry that had subsequently been resolved to the satisfaction of the member and the ANMF.

• [22] The new employer is the applicant for the proposed order. They favour the making of the order for the reasons given, each of which can be readily accepted as embodying the legitimate interests of the applicant. I also accept that there has been an expression of majority support for the application by the employees affected by the order through the poll and that this should be taken into account in the determination of the application. The employees were given a further opportunity to express any views about the application when they were served with the application and supporting material. None of the employees chose to express any other views to the Commission about the making of the proposed order. I consider that the views of the new employer and the affected employees that have been provided favour the making of the order.

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

• [23] The applicant submitted that the Transferring Employees would not be disadvantaged by the making of the order set out in the application because they would be entitled to some terms and conditions of employment that are more beneficial than the Mareeba Agreement and they would retain the benefits of numerous clauses within the Mareeba Agreement. Ms. Hopwood deposed to the fact that Whiddon had agreed, through the offers of employment, to preserve the base rate of pay applicable to the Transferring Employees' employment at Maclean and to provide that where the entitlement under the Whiddon Agreement is more favourable either at the date of the sale completion or a future date, the more favourable base rate of pay would apply. Further, the applicant acknowledged that there were some entitlements that were less favourable under the Whiddon Agreement than the Mareeba Agreement, including redundancy pay for some employees and long service leave after 10 years. In relation to these entitlements, Ms. Hopwood's evidence was that the more favourable entitlements arising under the latter agreement would be preserved, where applicable, through the operation of the common law contracts of employment.

• [24] The ANMF also made submissions to the effect that it had engaged in discussions with the applicant in relation to the following:

(i) How Transferring Employees would be mapped across to the Whiddon Agreement;

(ii) Rates of pay that Transferring Employees would receive upon transfer;

(iii) How future increases to rates of pay would be applied to Transferring Employees in receipt of a preserved rate of pay;

(iv) Guaranteed hours of work to be offered to Transferring Employees; and

(v) Whether there would be any change to the role or position description of Transferring Employees upon transfer.

• [25] The ANMF said all matters had been resolved to their satisfaction and that they were of the view that the orders would not result in any disadvantage to any of the Transferring Employees who were members or eligible to be members of the AMNF.

• [26] In the circumstances and having regard to the evidence before me I am satisfied that the Transferred Employees would not be disadvantaged by the making of the proposed orders. This weighs in favour of the making of the orders.

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

• [27] The applicant pointed out that the Mareeba Agreement passed its nominal expiry date on 30 June 2015 and that many of the entitlements and benefits outlined in that agreement are outdated and not in line with modern enterprise agreements and modern awards. The Applicant also noted that the nominal expiry date of the Whiddon Agreement was 1 October 2020. I regard this as a neutral consideration in the overall assessment.

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

• [28] Whiddon submitted that if the Mareeba Agreement were to continue to apply to the Transferring Employees, this would likely diminish productivity by decreasing employee output and increasing inputs because it would require the applicant to operate two separate payroll systems, giving rise to additional time, costs, and diversion of finite resources in creating and maintaining two payroll systems. They said the negative impacts of this situation include that the applicant's goal of maintaining a single inclusive workforce where all employees are subject to similar terms and conditions would be defeated, with a consequent loss of workplace harmony.

• [29] Further, the applicant submitted that it was likely that they would need to employ non-transferring employees at Mareeba and that these employees would not be covered by the Mareeba Agreement. They said that having future employees at Mareeba performing the same type of work as the Transferring Employees but receiving different rates and conditions to them would be detrimental to worker output and productivity levels

• [30] I accept that there is the potential for a negative productivity impact in having employees doing the same work in the same workplace engaged under separate instruments. These factors weigh in favour of the making of the proposed order.

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

• [31] Whiddon submitted that it would incur economic disadvantage as a result of the Transferable Instrument covering the Transferring Employees, largely due to the need to operate two separate payroll systems, giving rise to financial burden in needing to design and maintain two separate payroll systems, time and attendance systems, and new policies and procedures for the Transferring Employees. The Applicant also submitted that that staff would also need to be trained to understand the differences in the conditions and entitlements for Transferring Employees under the Transferable Instrument, which would be time-consuming and costly.

• [32] The applicant did not however contend that the economic disadvantage would be 'significant', and I accept that to be the case. I regard this as a neutral consideration.

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

• [33] The applicant submitted that the significant differences between the Mareeba Agreement and the Whiddon Agreement demonstrate that the latter lacks synergy with the applicant's business.

• [34] I am of the view that granting the order would on balance, result in greater business synergy as a single industrial instrument (the Whiddon Agreement) would apply to all of the Applicant's employees employed at the Mareeba Aged Care.

• [35] The applicant submitted that there is nothing to suggest the public interest is an issue to be considered in this application, noting that the only parties affected by the making of the order would be Whiddon and the Transferring Employees.

• [36] I am of the view that the making of the proposed order would be would not be contrary to the public interest.

• [37] Applications of this kind involve an assessment of the desirability of departing from the default position provided for by Part 2-8 of the Act that the instrument follows the employees where there is a transfer of business. The objects of Part 2-8 dictate that there must be a balance struck between the protection of employees' conditions of employment and the interest employers have in running their enterprises efficiently. Section 318 recognises the need for flexibility in some transfer of business scenarios provided an appropriate balance is achieved. Having regard to the conclusions I have reached in relation to each of the above matters I have come to the view that the application should be granted, and the order made.

• [38] Section 318(4), referred to above, restricts the time at which any order under s.318 comes into operation. The order made on 30 September 2025 reflects those requirements.

[1] PR792258.

[2] Lend Lease Engineering Pty Ltd and Ors [2014] FWC 5499 at [11] to [14].

[3] Deputy President Beaumont in Silver Chain Group Limited [2018] FWC 972 at [29].

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