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

Application for orders relating to transferable instrument

• [1] The Maternal and Child Health (MCH) service is a free, universal, primary health service available to Victorian families. It has historically been delivered pursuant to a partnership between local and state government.[1]

• [2] Relevant to this application, on or about 31 March 2025, Yarriambiack Shire Council (Council) ceased delivering the MCH service and the childhood immunisation service within the Yarriambiack Shire area. From on or about 1 April 2025, West Wimmera Health Service (WWHS) commenced delivering the MCH service and the childhood immunisation service within the Yarriambiack Shire. WWHS is a public hospital within the meaning of Schedule 1 of the Health Services Act 1988 (Vic).

• [3] There are five MCH and immunisation nurses (Transferring Employees) who deliver the MCH service and the childhood immunisation service within the Yarriambiack Shire area under the current employment of Council. They are employed in accordance with the Yarriambiack Shire Council Consolidated Enterprise Agreement Number (10) 2024[2] (Yarriambiack Agreement). The Transferring Employees will be transferred to WWHS to provide the same services and perform the same function under the employment of WWHS.

• [4] WWHS filed an application in the Commission pursuant to s 318 of the Fair Work Act 2009 (Cth) (Act) seeking an order that the Yarriambiack Agreement not cover WWHS and the Transferring Employees. It seeks that the Transferring Employees are instead covered by the Nurses and Midwives (Victorian Public Sector) Single Interest Employer Agreement 2024-2028[3] (Nurses Agreement).[4] The orders are sought pursuant to s 318(1)(a) and (b) of the Act. For the reasons that follow, I am satisfied that the orders should be made.

• [5] WWHS intends to offer employment to the Transferring Employees. WWHS submits that the work that the Transferring Employees will perform for it will be the same or substantially the same as the work that they perform for Council, being the delivery of the MCH service and childhood immunisation service within the Yarriambiack Shire area.

• [6] WWHS further submits that there will be a connection between it and Council in that effective from 1 April 2025 (or shortly thereafter) the funding provided by the Department of Health to Council for the MCH service and childhood immunisation service has transferred to WWHS.[5] Further, assets that Council owned or had the beneficial use of have been or will be transferred to WWHS for use in connection with the transferring work. This includes but is not limited to lease agreements for the facilities utilised in the delivery of the MCH services, motor vehicles and immunisation refrigerators.[6]

• [7] WWHS contends that, given these matters, there will be a transfer of business from Council to WWHS pursuant to s 311(1) of the Act. These matters are not in dispute.[7] I am therefore satisfied that it is likely that:

(a) the employment of the Transferring Employees with Council will terminate within 14 days of 7 April 2025;

(b) within three months after the termination, the Transferring Employees will become employed with WWHS;

(c) the work that the Transferring Employees perform for WWHS will be the same or substantially the same as the work done for Council (transferring work); and

(d) there is a connection between WWHS and Council because, in accordance with an arrangement between WWHS and Council, WWHS will own or have the beneficial use of some or all of the assets (whether tangible or intangible) that Council owned or had the beneficial use of and that relate to, or are used in connection with, the transferring work.

• [8] In light of these matters, it is likely that the Transferring Employees will meet the definition of a transferring employee for the purposes of s 311(2) of the Act. Noting that none of these matters are in dispute, I am satisfied that:

(a) there will likely be a transfer of business from Council to WWHS;

(b) the Yarriambiack Agreement is a transferable instrument;

(c) upon the likely transfer of business, the Transferring Employees and WWHS will continue to be covered by the Yarriambiack Agreement; and

(d) upon the likely transfer of business, the Australian Nursing and Midwifery Federation (ANMF), the Australian Municipal, Administrative, Clerical and Services Union and the Association of Professional Engineers, Scientists and Managers, Australia will continue to be covered by the Yarriambiack Agreement.

• [9] WWHS has standing to make this application in the Commission because, in the circumstances described and pursuant to s 318(2)(a) of the Act, it is likely to be the new employer of the Transferring Employees. In deciding whether to make the orders sought, I must take into account the matters set out in s 318(3) of the Act, which are considered in the analysis that follows.

The views of the new employer or a person who is likely to be the new employer and the views of the employees who would be affected by the order (s 318(3)(a))

• [10] The Commission must take into account the views of the new employer and the employees who would be affected by the order.

• [11] Having made the application, WWHS supports the orders being made. It seeks to apply uniform conditions of employment to existing and transferring employees and to ensure the ongoing provision of a high quality MCH service and childhood immunisation service to children and families within the Yarriambiack Shire. Further, it seeks to ensure the Transferring Employees are not disadvantaged.

• [12] The Commission issued directions in this matter on 26 February 2025 requiring WWHS to provide the Transferring Employees and relevant employee organisations with:

(a) a copy of the directions; and

(b) advice that they may make a submission or file materials in response to the application in writing to Chambers.

• [13] WWHS submitted evidence of the service of this material on 28 February 2025.[8] While no submissions were received directly from any Transferring Employees, the ANMF filed submissions on its own behalf and on behalf of the Transferring Employees (who are its members and whose industrial interests it represents). The position advanced by the ANMF was that it did not oppose the application provided that the Transferring Employees were not disadvantaged by any order made.[9] I am satisfied that through this process, the views of the employees who would be affected by the order have been heard.

• [14] The views of WWHS and the ANMF (subject to its condition that Transferring Employees are not disadvantaged) weigh in favour of making the orders.

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

• [15] The Commission must consider whether any employee would be disadvantaged by the order in relation to their terms and conditions of employment. To ensure the Transferring Employees are not disadvantaged, WWHS and the ANMF entered into memorandum of understanding.

• [16] Before the Commission is a table comparing the current rates of pay and allowances under the Yarriambiack Agreement to those under the Nurses Agreement.[10] I accept the submissions of WWHS and the ANMF that the comparison table contains the best possible methodology for comparing a Transferring Employees' guaranteed earnings (which the parties submit includes their base wage plus allowances ordinarily received).

• [17] To ameliorate any financial disadvantage arising where the guaranteed earnings under the Nurses Agreement are less than under the Yarriambiack Agreement, WWHS has agreed to pay a wages uplift. The amount of the wages uplift is the subject of a detailed table in respect of each Transferring Employee.[11] For privacy reasons, these tables are not replicated in this decision. I am satisfied that WWHS will offer employment to the Transferring Employees consistent with the classification in the relevant Annexure A table on terms comprising as follows:

(a) a base wage pursuant to the Nurses Agreement plus the wages uplift figure specified in the relevant table;

(b) the qualification allowance (conditional upon the employee continuing to hold pre-requisite qualifications and being entitled to the qualification allowance under the Nurses Agreement);

(c) the laundry allowance (conditional upon the employee being entitled to the laundry allowance under the Nurses Agreement); and

(d) any additional allowance or entitlement to which the employee may be entitled pursuant to the Nurses Agreement.

• [18] The wages uplift will account for the guaranteed earnings of Transferring Employees through to 28 November 2027. It is said that this will ensure that the Transferring Employees will remain financially better off than the alternative of continuing employment under the Yarriambiack Agreement which reaches its nominal expiry date on 12 April 2027.

• [19] The memorandum of understanding also contains specific employment terms for each of the Transferring Employees addressing (where relevant) continuity of service, accumulated leave and motor vehicle access. I also note that it is not in dispute that the Nurses Agreement is more favourable to employees than the Yarriambiack Agreement in relation to certain leave entitlements.[12]

• [20] Having regard to these matters, I am satisfied that the Transferring Employees will not be disadvantaged in relation to their terms and conditions of employment if the orders sought by WWHS are made. I consider that this weighs in favour of making the orders.

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

• [21] If the application under s 318 relates to an enterprise agreement, the Commission must consider the nominal expiry date of the agreement. The nominal expiry date of the Yarriambiack Agreement is 12 April 2027.[13] The nominal expiry date of the Nurses Agreement is 30 April 2028.[14] The nominal expiry dates of these agreements are neutral considerations.

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

• [22] The Act requires the Commission to consider whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace.

• [23] WWHS submits that if the application is not granted, there would be an unnecessary and avoidable increased administrative burden associated with the continued application of the Yarriambiack Agreement to the Transferring Employees. WWHS contends that this creates inefficiencies in terms of payroll productivity, which are not justified in circumstances where the Transferring Employees are not disadvantaged by the transfer. This is a matter that may give rise to administrative costs and human resources burdens, which I accept may negatively affect the productivity of the applicant's workplace. This weighs in favour of making the orders.

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

• [24] WWHS submits that it will incur economic disadvantage by reason of being required to continue administering the Yarriambiack Agreement. These contentions are said to arise on account of the costs of administering separate sets of employment conditions and the increased risk of potential payroll error. It is not expressly submitted by WWHS that it will suffer significant economic disadvantage as a result of the Yarriambiack Agreement covering it. However, to the extent that this is contended, WWHS' submissions focus on the negative impact administering multiple instruments may have upon workplace productivity, which is a matter that I have taken into account in respect of the consideration at s 318(3)(d) above. While acknowledging that productivity concerns may lead to economic disadvantage, the material before the Commission is insufficient to persuade me that any economic damage in this instance will be significant. I therefore regard this factor to be a neutral consideration.

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

• [25] The Commission is required to consider the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer. WWHS contends that the Yarriambiack Agreement and the Nurses Agreement contain numerous similarities, both of which are conducive to the nature of the duties performed by the Transferring Employees. However, WWHS submits that it is more appropriate that the Transferring Employees be covered by the Nurses Agreement for uniformity and efficient employee management.

• [26] There is some business synergy between the two instruments. However, I accept the submissions of the ANMF that the Nurses Agreement provides scope for maternal and child health nurses, co-ordinators and immunisers to be engaged pursuant to an expanded classification structure containing a wider recognition of skills, experience and responsibility. This weighs in favour of making the orders.

• [27] Section 318(3)(g) requires the Commission to consider the public interest. WWHS submits that it is in the public interest that the Transferring Employees are able to continue their work and serve their community on conditions no worse than presently enjoyed.

• [28] The notion of public interest is informed by the objects of Part 2-8 as set out in s 309, and the objects of the Act more generally under s 3. This entails a concern for the protection of transferring employees' conditions of employment and the importance of an employer being able to run its enterprise efficiently.[15] Having regard to those matters and the material before me, I consider the application to be compatible with the public interest. However, this does not carry any particular weight in circumstances where the considerations in this decision have not been the subject of dispute between the parties. Accordingly, I regard this factor to be a neutral consideration.

• [29] In deciding whether to make the orders, I am required to take into account all the matters in s 318(3). I am satisfied on the basis of the matters set out in this decision that I should make the orders.

• [30] I will therefore order that pursuant to s 318(1)(a) of the Act that the Yarriambiack Agreement does not or will not cover WWHS or the Transferring Employees in relation to the employment of the Transferring Employees by WWHS. Further, I will order that pursuant to s 318(1)(b) of the Act, the Nurses Agreement will cover the Transferring Employees in their employment with WWHS.

• [31] For the purposes of s 318(4) of the Act, the orders will come into operation in respect of a Transferring Employee on the date that the Transferring Employee becomes employed by WWHS or the day on which the order is made, whichever is the later.

• [32] An order giving effect to this decision will be issued separately in PR785888.

[1] Memorandum of understanding between West Wimmera Health Service and the Australian Nursing and Midwifery Federation (Victorian Branch) dated 28 March 2025 (MoU)

[4] Form F40 Application for orders in relation to a transfer of business at [2.2]

[6] Second Further Submissions filed by WWHS dated 4 April 2025

[7] Email from the Australian Nursing and Midwifery Federation (Victorian Branch) (ANMF) to Chambers dated 4 April 2025

[8] Statutory declaration of Kristoff Laurence Laijoie dated 28 February 2025

[9] Submissions of the ANMF dated 13 March 2025

[12] Form F40 Application for orders in relation to a transfer of business, 2.3 at [9] regarding annual leave and personal leave; ANMF submissions at [12]

[15] See AustralianSuper Pty Ltd [2024] FWC 734 at [23] (per Colman DP)

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