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

Application for orders in relation to a transferable instrument - Orders made

• [1] West Wimmera Health Service (the applicant) has applied under s 318 of the Fair Work Act 2009 (Cth) for orders in relation to a transferable instrument, the West Wimmera Shire Council Enterprise Agreement No. 10 - 2021 (WWSC Agreement 2021).

• [2] The WWSC Agreement 2021 was approved by Commissioner Yilmaz on 28 October 2021: [2021] FWCA 6474 . It commenced operation on 4 November 2021, and its nominal expiry date is 15 October 2024. The approval decision notes that the agreement covers the Australian Municipal, Administrative, Clerical and Services Union (ASU)and the Australian Nursing and Midwifery Federation (ANMF).

• [3] In mid-July 2025, West Wimmera Shire Council issued a resolution to cease providing maternal child health services. The Council had employed 3 employees (2 maternal and child health and immunisation nurses and 1 Perinatal Emotional Health Practitioner) to provide the services.

• [4] The applicant is a public hospital within the meaning of Schedule A of the Health Services Act 1988 (Vic), who will employ the 3 employees to deliver the maternal child health services when the Council ceases to do so (the Transferring Employees). The applicant seeks that the WWSC Agreement 2021 not cover it and the Transferring Employees, and that the Nurses and Midwives (Victorian Public Sector) Single Interest Employer Agreement 2024-2028 instead cover it and the Transferring Employees.

• [5] The Nurses Agreement 2024-2028 was approved by Deputy President O'Neill on 8 November 2024: [2024] FWCA 3908 . It commenced operation on 15 November 2024. Its nominal expiry date is 30 April 2028.

• [6] In support of its application, the applicant provided an undertaking as well as detailed submissions within its application form, letters of consent from each of the 3 transferring employees, documents relating to the transfer and documents it had prepared comparing wages and other entitlements under the agreements. During the course of the application, the applicant and the ANMF conferred and produced a memorandum of understanding for my consideration with the application.

• [7] I have considered all the materials and am satisfied that the orders should be made. My reasons follow.

• [8] 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 within the meaning of s 311 of the Act.

• [9] I am satisfied that there is a transfer of business because the Transferring Employees' employment with the Council has ended and they have begun employment with the applicant immediately. The Transferring Employees will be performing the same, or substantially the same, work for the applicant as they had performed for the Council. Last, there is a connection between the applicant and the Council within the meaning of s311(3) because there is an arrangement between the applicant and the Council for the transfer of all assets used in connection with the work, including the transfer of Department of Health funding to provide the services.

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

• [11] 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.

• [12] The applicant is the new employer; it clearly supports the making of the orders. It employs other employees under the Nurses Agreement 2024-2028 and wishes to ensure that the Transferring Employees are subject to the same agreement that a majority of its employees are subject to. 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

• [13] The applicant provided me with letters of consent from each of the 3 transferring employees. Those letters are effectively signed forms that state that each of the employees consent to the orders being sought by the applicant. I have taken note of this, but do not give it significant weight.

• [14] The ANMF is covered by both agreements. I provided an opportunity for the ANMF to provide its views on the application. The ANMF made submissions and engaged in discussions with the applicant, following which the applicant and the ANMF reached an understanding reflected in a Memorandum of Understanding provided to my chambers. I do not consider it necessary to reproduce that Memorandum with this decision. Following the provision of that Memorandum, the ANMF indicated that it did not oppose the application.

• [15] I consider this factor weighs in favour of the orders being made.

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

• [16] I am satisfied that the Transferring Employees will not be disadvantaged by the order because of the Memorandum of Understanding referred to above and because of undertakings that the applicant has provided to ensure that the wages of the Transferring Employees are not less if the orders are made than if the WWSC Agreement 2021 continued to apply. I attach the undertakings to this decision but have redacted the names of the individual employees.

• [17] The Memorandum of Understanding included terms relating to recognition of continuity of service, accrued entitlements and motor vehicle access.

• [18] I am of the view that this factor weighs in favour of making the orders.

318(3)(c) - the nominal expiry date of relevant enterprise agreement

• [19] The WWSC Agreement 2021 has passed its nominal expiry date, which was 15 October 2024. The Nurses Agreement 2024 - 2028's nominal expiry date is 30 April 2028. This means that if the WWSC Agreement 2021 applies to the Transferring Employees, they do not have any further guaranteed wage increases. Under the Nurses Agreement 2024-2028, there are 8 further wage increases.

• [20] I am of the view that this factor weighs in favour of making the order.

• [21] The applicant submits that there would be a negative impact on productivity if it is required to apply an agreement to some employees that is different to that which applies to the majority if its employees. The applicant also submits that there would be increased administrative workload and the potential for error in calculating wages, allowances and other entitlements. Last, the applicant submits that there is a real risk that terms and conditions of employment will diverge as the nominal expiry date of the WWSC Agreement 2021 has passed. I accept these submissions and am of the view that this factor weighs in favour of making the orders.

• [22] Despite the submissions about additional administrative burden and potential cost due to the risk of non-compliance, I do not consider that there is significant economic disadvantage to the applicant if I were to not make the order sought. I therefore consider that this factor is neutral (that is, it neither in weighs in favour nor against making the orders).

• [23] Clause 4.5 of the WWSC Agreement 2021 provides that it covers all employees of West Wimmera Shire Council excluding the Chief Executive Officer, Senior Officers and Senior Executive Officers and employees who are covered by the Early Education Employees Agreement 2020 (or its successor). This includes many employees who do not perform work that is similar to the work performed by the Transferring Employees. In contrast, the Nurses Agreement 2024-2028 covers employees who are Registered and Enrolled Nurses, Registered Midwives, Registered Undergraduate Students of Nursing and Midwifery and Registered Enrolled Nurse Student and does not cover any other types of employees.

• [24] While the work performed by the Transferring Employees may be the same, the business of the old and new employer lacks business synergy: the old employer is a Council employing many different types of employees and the new employer is a health service, employing predominantly nurses and midwives (although it may have other enterprise agreements that applies to different workforces). Under the Nurses Agreement 2024-2028, the Transferring Employees may have access to a greater range of classifications that may allow for better recognition of skills, experience and responsibilities,

• [25] I consider that this factor weighs in favour of making the orders.

• [26] 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).

• [27] The applicant submits that it is in the public interest for people who work in maternal and child health services to be paid at rates and afforded rights and entitlements which are commensurate to their responsibilities. I agree with the sentiment, but it is not relevant to whether the order is made. If the order is not made, the Transferring Employees remain entitled to all the terms and conditions of employment under the WWSC Agreement 2021. Making the order, however, is not against the public interest and so I consider this factor to be neutral.

• [28] I have considered each of the matters under s 318 and am satisfied that I should make the orders sought. An order will be issued separately.[1]

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