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] Warrina Homes Inc (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (the Act) seeking orders in relation to instruments covering a new employer and transferring employees.

• [2] The Applicant seeks an order that the Goel Nominees Nursing Employees (Aged Care) & ANMF Enterprise Agreement 2021 (Agreement) cease to apply to the Applicant and the 17 transferring employees whose employment transferred to the Applicant following its acquisition of the Gloucester Residential Care Facility (now known as Warrina Crescent) from Goel Nominees Pty Ltd (Goel Nominees) in December 2022.

• [3] The Agreement commenced operation on 15 October 2021 and covers Goel Nominees, the Australian Nursing and Midwifery Association (ANMF), and employees whose employment is governed by its terms. As a result of the transfer of business, the Agreement became a transferable instrument within the meaning of s.312 of the Act and applied to the Applicant and the transferring employees.

• [4] The Applicant seeks an order under s.318(1)(a) that the Agreement does not cover the Applicant and the 17 transferring employees.

• [5] Section 318 of the Act relevantly provides:

"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."

• [6] I am satisfied that the Applicant, being the new employer, has standing to apply for the orders sought in the present application.

• [7] I now turn to consider the matters in s.318(3) which the Commission must take into account in determining whether to make the orders sought, having regard to the grounds and submissions advanced by the Applicant.

Views of the new employer and affected employees (s.318(3)(a))

• [8] The Applicant employs 53 nursing employees at Warrina Crescent. Of these, 17 employees (approximately 10% of the workforce) are covered by the Agreement. The remaining employees engaged after the acquisition are covered by the Children's Services Award 2020 (the Award).

• [9] The Applicant submits that it is preferable for all nursing employees at Warrina Crescent to be covered by a single industrial instrument. It contends that applying the Award to the entire workforce would promote consistency, transparency and fairness in employment conditions.

• [10] The Applicant submits that the affected employees were informed of the proposed application on 20 October 2025 and invited to an information session. Five employees attended the session on 24 October 2025. The Applicant explained the reasons for the proposed application and answered questions relating to pay rates, leave balances, Award pay progression and contract variation. A seven-day period for follow-up questions was offered. No further feedback was received.

• [11] The ANMF was also notified of the proposed application on 20 October 2025. Although unable to attend the information session, the ANMF subsequently expressed concern that the Agreement contains higher rates for Level 4 and 5 Registered Nurses and indicated their preference to commence bargaining rather than reverting the Agreement to the Award. The Applicant responded that none of the employees covered by the Agreement fall within Levels 4 or 5, and that the immediate concern is that the employees are currently worse off under the Agreement. The Applicant stated that no further response was received from the ANMF.

• [12] The Commission issued Directions inviting the ANMF and all affected employees to indicate whether they wished to be heard in relation to the application. No response was received from the ANMF or any affected employees.

Whether any employees would be disadvantaged by the order - s.318(3)(b)

• [13] The Applicant provided a detailed comparison of the EA and the Award. In summary:
  • In most respects the Award provides the same or more favourable entitlements.
  • Annual pay point progression under the Award is more favourable than the EA system based on hours worked.
  • Some allowances (travel, transport and laundry) are marginally higher under the EA but are expected to be exceeded by Award allowances following the next Annual Wage Review.
  • The EA contains a team leader in-charge allowance not found in the Award; however, the Applicant has adopted this allowance in its policy and will continue to provide it.
  • Qualification allowances in the EA have not been utilised by any EA-Covered Employees.
  • The EA provides seven weeks' paid parental leave; the Award is silent, and the Applicant's policy provides four weeks. The Applicant has committed to preserve the EA's parental leave entitlement for EA-Covered Employees through contract variations.

• [14] The Agreement has a nominal expiry date of 30 June 2024.

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

• [15] The Applicant submits that operation of the Agreement is negatively affecting productivity at Warrina Crescent. The workforce performs the same work but is engaged on different terms and conditions, creating inconsistency and inequity. Changes to the Award arising from the Commission's Work Value Case have further widened these differences. Further, administering two industrial instruments for identical roles imposes administrative burden, including maintaining six separate profiles in the HRIS for EA-Covered Employees.

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

• [16] The Applicant submits that the additional administrative costs associated with applying two sets of employment conditions to staff at Warrina Crescent are excessive and unnecessary in circumstances where there are only 17 employees covered by the Agreement.

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

• [17] The Award already covers approximately 66% of the Applicant's nursing workforce across multiple sites. The Agreement, by contrast, covers only approximately 10% and was bargained specifically for Goel Nominees' operations. There is limited synergy between the Agreement and the Applicant's operational model.

• [18] Because Goel Nominee continues to be covered by the Agreement, there remains a risk that Goel Nominee may seek to terminate the Agreement, leaving the Applicant exposed to uncertainty regarding the timing and consequences of such an application.

• [19] The Applicant submits that granting this application is not contrary to the public interest because, consistent with s 309 of the Act, the order sought would appropriately balance the protection of employees' terms and conditions of employment and the interests of employers in running their enterprises efficiently.

• [20] Having considered the material provided and taking account of all the matters in s.318(3) of the Act, I am satisfied that it is appropriate to grant the application. The order will be issued separately with this decision.

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