1 Fair Work Act 2009 s.319 - Application for an order relating to instruments covering new employer and non- transferring employees Deputy Rail Commissioner (AG2025/3925) ADELAIDE METRO OPERATIONS TRAM OPERATIONS ENTERPRISE AGREEMENT 2023 (ODN AG2023/5361) [AE523167] Rail industry COMMISSIONER ROGERS ADELAIDE, 27 MARCH 2026 s.319 Application for an order relating to instruments covering new employer and non- transferring employees – transfer of business – ceased to outsource – transferring work – Application granted [1] The Deputy Rail Commissioner (the Applicant) filed an application in the Fair Work Commission (the Commission) for an order under section 319 of the Fair Work Act 2009 (the Act). It subsequently filed an amended application to particularise its claim on 23 January 2026. [2] The Applicant sought an order for the Adelaide Metro Operations Tram Operations Enterprise Agreement 2023 (the AMO EA) to cover non-transferring employees of the Applicant who perform the transferring work and a further order that the Rail Commissioner Tram Operations Enterprise Agreement 2020 (the Rail Commissioner EA) will not cover non- transferring employees of the Applicant who perform the transferring work. [3] For the reasons set out below, I am satisfied that the orders should be made. Background [4] Immediately prior to 5 July 2020 the Applicant operated passenger trams in South Australia. On 5 July 2020 publicly operated tram operations in South Australia were outsourced to Adelaide Metro Operations Pty Ltd T/A Adelaide Metro Operations Pty Ltd (AMO).1 [5] At that time, employees performing work in the classifications in the Rail Commissioner EA commenced performing substantially the same work for AMO as they had been for the Applicant. [2026] FWC 1035 DECISION [2026] FWC 1035 2 [6] On 31 August 2025, 101 employees of AMO had their employment terminated and they commenced employment with the Applicant (the transferring employees) performing substantially the same work (the transferring work).2 [7] At the time, the transferring employees were covered by the AMO EA (the transferrable instrument) which through the operation of s. 313 of the Act, transferred with the transferring employees to the Applicant. [8] The Rail Commissioner EA continues to apply to employees of the Applicant who are non-transferring employees in the absence of the orders sought being issued. [9] The Applicant intends to employ additional workers to perform the transferring work (the non-transferring employees) and seeks to have the AMO EA apply to those employees.3 Orders are also sought confirming that the Rail Commissioner EA will not apply to those non- transferring employees. Transfer of Business [10] The transferring employees’ employment was terminated with AMO and commenced with the Applicant on 31 August 2025 where they continued to undertake the transferring work.4 [11] There is a connection between AMO and the Applicant of the type described in s. 311(5) due to the outsourcing of the transferring work in July 2020 and the cessation of the outsourcing of the transferring work on 31 August 2025. [12] Accordingly, I am satisfied that a transfer of business has occurred as defined in s 313 of the Act. Transferable Instrument [13] The AMO EA is an enterprise agreement approved by the Commission on 17 January 2024 and is a transferrable instrument as defined by s. 312(1)(a). [14] As a result of the operation of s. 313 of the Act, the transferring employees will be covered by the AMO EA (transferable instrument) from 31 August 2025 (the transfer time). [15] Due to the operation of s. 314 of the Act, the Rail Commissioner EA will apply to non- transferring employees who perform the transferring work in the absence of an order in the form sought. Orders Sought [16] In deciding whether to make the order, the FWC must take into account the considerations in s. 319(3). I now consider these factors in turn. Views of the Applicant and the non-transferring employees [17] The new employer, the Applicant, has made the application under s. 319 and supports the orders being made. [2026] FWC 1035 3 [18] It is submitted by the Applicant that the orders sought would ensure that employees of the Applicant performing the transferring work will have consistent entitlements and wages. [19] The AMO EA was modelled on and largely reflects the wording and classification structure of the Rail Commissioner EA.5 However, the AMO EA remuneration is at least 15.5% higher across all classifications than the Rail Commissioner EA6 and contains an additional classification of Customer Service Officer (CSO).7 [20] The Applicant seeks to recruit further employees into the CSO classification and says that it will be assisted in recruitment by the AMO EA covering them. [21] The non-transferring employees that the Applicant is seeking for the AMO EA to cover are future prospective employees8 and accordingly, it is not possible to obtain their views. However, I do note that the Australian Rail, Tram and Bus Industry Union (RTBU) supports the application and orders being made.9 [22] I consider the matters raised in relation to s. 319(3)(a) weigh in favour of granting the orders sought. Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment [23] In addition to the wages being higher, the AMO EA has allowances that are higher, contains expanded rights for shift swaps and give-away shifts and clearer depot transfer compensation rates as well as containing the CSO classification.10 [24] There are two employees of the Rail Commissioner who performed the transferring work in 2020 when the work was outsourced, but were not undertaking the transferring work when the Applicant ceased to outsource the transferring work. [25] Due to these employees’ circumstances11 I am satisfied that they are not performing or likely to perform the transferring work and accordingly there is no disadvantage to those employees in making the orders as they will not be captured by the orders. [26] Having considered all of the materials before me, I am satisfied that the non-transferring employees will not be disadvantaged and this factor weighs in favour of making the orders sought. Nominal expiry date of the agreement [27] The nominal expiry date of the AMO EA is 30 June 2026, and the Rail Commissioner EA has passed its nominal expiry date of 30 June 2023. [28] I find this to be a neutral consideration in the present circumstances, including that the RTBU support the application.12 Whether the transferable instrument would have a negative impact on the productivity of the Applicant’s workplace [2026] FWC 1035 4 [29] It was submitted by the Applicant that productivity is supported if they are able to recruit and employ staff under the terms of a single enterprise agreement.13 [30] I do not consider that the AMO EA would have a negative impact on the Applicant’s productivity in the circumstances and find that this weighs in favour of granting the orders sought. Whether the Applicant would incur significant economic disadvantage as a result of the transferable instrument covering the Applicant [31] Despite not being legally obligated to, the Applicant is currently paying the higher wage rates consistent with the AMO EA on an administrative basis, so there is no practical economic disadvantage.14 [32] Accordingly, I find that there would not be significant economic disadvantage to the Applicant if the AMO EA were to cover the Applicant. [33] This weighs in favour of making the orders. Degree of business synergy between the transferable instrument and any workplace instrument that already covers the Applicant [34] As identified previously, the AMO EA largely reflects the wording and classifications in the Rail Commissioner EA15 but it contains significant pay increases and includes an additional classification of CSO. [35] I am satisfied based on the materials before me that the degree of synergy between the AMO EA and the Rail Commissioner EA supports making the orders sought. Public interest [36] Based on the materials before me, I am satisfied that it would not be contrary to the public interest to make the orders sought and that granting the orders would provide consistency in employment conditions for both employees and the Applicant. Conclusion [37] Having considered each of the matters set out in s. 319(3) of the Act, I am satisfied based on the materials before me that the orders sought should be made. [38] An order giving effect to this decision will be issued in conjunction with its publication.16 [2026] FWC 1035 5 COMMISSIONER Printed by authority of the Commonwealth Government Printer <AE523167 PR798059> 1 Witness Statement of Ms Sayce at paragraphs 8-9. 2 Ibid at paragraphs 17-18. 3 Ibid at paragraphs 21-25; Submissions of the Applicant dated 23 January 2026 at paragraph 19. 4 Witness Statement of Ms Sayce at paragraph 18. 5 Ibid at paragraph 20. 6 Ibid at paragraph 24. 7 Ibid at paragraph 21. 8 Ibid at paragraphs 19 & 21. 9 Audio Recording of Directions Hearing at 13:33-14:03. 10 Witness Statement of Ms Sayce at paragraph 23. 11 Ibid at paragraphs 27-29. 12 Audio Recording of Directions Hearing at 13:33-14:03. 13 Witness Statement of Ms Sayce at paragraph 21; Submissions of the Applicant dated 23 January 2026 at paragraph 22(d). 14 Witness Statement of Ms Sayce at paragraph 25; Submissions of the Applicant dated 23 January 2026 at paragraph 22(e). 15 Witness Statement of Ms Sayce at paragraph 20. 16 PR798060.