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[55]
[2026] FWC 136
General information, not legal advice.
Fair Work Commission
2026-01-16
Original judgment source is linked above.
s.318 - Application for an order relating to instruments covering new employer and transferring employees
S.318 - Application for an order relating to instruments covering new employer and transferring employees.
[1] Ventia Australia Pty Limited (Ventia or the Applicant) has applied to the Fair Work Commission (the Commission) under section 318 of the Fair Work Act 2009 (Cth) (the Act) for an order in relation to a transfer of business.
[3] The order sought in the application relates to 34 employees (the Transferring Employees) previously employed by BR&I Pty Limited (the Old Employer) prior to their engagement with Ventia. The Transferring Employees are those referred to in clauses 3.2 and 3.3 of the New Agreement and those clauses contained obligations for Ventia to make offers of employment under the New Agreement's terms to the Transferring Employees. Clauses 3.4 and 3.5 of the New Agreement required Ventia to subsequently lodge this application and for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the Australian Workers' Union (the AWU) to support the application.
[4] Ventia made written offers of employment to Transferring Employees following the approval date and on or before the commencement date of the New Agreement, between 18 August 2025 and 21 August 2025.
[5] Ventia's written offers of employment were accepted by the Transferring Employees between 19 August 2025 and 04 September 2025.
[6] The work performed by the Transferring Employees for the Old employer was maintenance and other related work at the Gorgon LNG, Wheatstone Downstream LNG sites, installations, facilities operated by Chevron Australia Pty Limited on Barrow Island in Western Australia (the Transferring Work).
"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.
Restriction on when order may come into operation
(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."
[9] I am satisfied that the Applicant is entitled to make this application as the new employer; the Transferring Employees will perform the same or substantially the same work for the Applicant; and there is a connection between the Old Employer and the Applicant within the meaning of section 311 of the Act.
[10] The effect of the order sought by the Applicant would be that the Old Agreement would not cover the Applicant or any of the Transferring Employees. And, instead, the New Agreement would apply to the Transferring Employees.
[11] Section 318 of the Act provides that the Commission has discretion to make the Order and in determining whether to make the order, I must consider each of the matters in section 318(3) of the Act. I will now turn to consider these matters.
[12] The Applicant, being the new employer, is of the view that the Commission should make the orders sought.
The views the employees who would be affected by the order and whether they would be disadvantaged by the order
[13] The Applicant submits that the Commission can infer that the Transferring Employees who would be affected by this order are of the view that the Commission should make the orders sought as they accepted offers of employment from Ventia on the basis that they would be covered by the New Agreement.
[14] The Applicant submits that the Transferring Employees will not be disadvantaged by the order in relation to their terms and conditions of employment as the New Agreement contains superior rates of pay and other terms and conditions when compared to the Old Agreement. A comparison of classifications and rates of pay was provided to the Commission with the application. On average, the rates of pay for Transferring Employees under the New Agreement are 39% higher than those under the Old Agreement.
[15] Further, the Applicant submits that if the order is not made the Transferring Employees will be disadvantaged when compared to the other employees of Ventia performing the same work on the same site. The Applicant is of the position that this is likely to cause conflict between the Transferring Employees, other Ventia employees performing the same work on the same site, and management.
[16] The Applicant highlights that the Old Agreement contains rates of pay and terms and conditions of employment that are below the current industry standards.
[17] The Applicant also states that the CEPU and AWU, who bargained for the New Agreement, are aware of and supportive of the application.
[18] The Commission wrote to the CEPU and AWU, who had been served with the application, to confirm its understanding of their position.
[19] Both the CEPU and AWU confirmed that they did not hold objection to the application.
[20] The Old Agreement has passed its nominal expiry date of 15 October 2025. The New Agreement has a nominal expiry date of 14 August 2029.
Whether the transferable instrument would have a negative impact on the productivity of the
[21] The Applicant submits that the Old Agreement would have negative impact on productivity. The Applicant states that the continued operation of the Old Agreement would require Ventia to administer:
Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
[22] The Applicant submits that the continued operation of the Old Agreement would cause significant economic disadvantage.
[23] In addition to reiterating the reasons provided at paragraph [21], the Applicant is of the position that it is likely Ventia would be unable to retain the services of the Transferring Employees (who are highly skilled, experienced and in demand in the oil and gas industry) who will seek employment with other employers on significantly better rates of pay and terms and conditions of employment that those contained in the Old Agreement.
[24] In order to remedy the issues identified above, the Applicant submits that it would be required to renegotiate the Old Agreement. The Applicant notes that doing such is inefficient, time consuming, and unnecessary given the New Agreement covers the same work and can cover the Transferring Employees.
[25] The Applicant notes that, if Ventia did renegotiate the Old Agreement to update its rates of pay and terms and conditions of employment, it is prevented by the New Agreement from engaging more employees under the Old Agreement to perform the Transferring Work.
The degree of business synergy between the transferable instrument and any workplace instrument that covers the new employer
[26] The Applicant submits that, for the reasons discussed at paragraphs [21] - [25], there is limited business synergy between the two instruments.
[27] The Applicant submits that it is in the public interest to grant the order for the following reasons:
[28] I am satisfied that granting the order would not be contrary to the public interest.
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