1 Fair Work Act 2009 s.318 - Application for an order relating to instruments covering new employer and transferring employees Black Kite Partners Pty Limited (AG2026/759) DEPUTY PRESIDENT GRAYSON SYDNEY, 2 JULY 2026 Application for an order relating to instruments covering new employer and transferring employees – application granted. [1] Black Kite Partners Pty Ltd (the Applicant) (ABN 66 693 437 482) has made an application under s.318 of the Fair Work Act 2009 (Cth) (the Act). The Applicant and IFM Investors Pty Ltd (the Old Employer) (ABN 67 107 247 727) have completed a transfer of business, where 8 employees of the Old Employer have been offered employment with the Applicant (the Transferring Employees). The Transferring Employees ceased employment with the Old Employer on 30 April 2026 and commenced employment with the Applicant on 1 May 2026. [2] The application seeks orders from the Fair Work Commission that the IFM Investors Agreement 2025 (the IFM Agreement/Transferable Instrument) not cover the Transferring Employees. The Order proposed by the Applicant is set out in the terms below: 1. From the date of this order, pursuant to section 318(1)(a) of the Fair Work Act, the IFM Investors Agreement 2025 (AG2025/2736) will not cover Black Kite Partners Pty Ltd and the following Transferring Employees: (a) Belinda Filippazzo-Cejas; (b) Scott Butchers; (c) Jonathan Ramasamy; (d) Daniela Wegner; (e) Rebecca Chen; (f) Adrian Kerley; (g) David Odgers; and (h) Stuart Wardman-Browne. [3] The Applicant declared that in or around October 2025, Mr David Odgers entered into discussions with the Old Employer that contemplated the departure of the Transferring Employees, who comprised eight of the most senior Australian employees within the Old Employer’s private equity division. The Applicant was incorporated by December 2025, and in February 2026, the Applicant and Old Employer entered into an agreement in which the [2026] FWC 2483 DECISION [2026] FWC 2483 2 Applicant will provide investment advice and other services to the Old Employer for its existing portfolio of six companies. The Applicant declares this constitutes the ‘Transaction’, and following the completion of the Transaction, in around April or May 2026, the Applicant will commence providing services to the Old Employer. The Applicant further declared that the Transferring Employee’s employment with the Old Employer would cease on the date the Transaction is completed, and the transfer date will be the following business day after the date of completion. The transfer date has since been confirmed as 1 May 2026. [4] In essence, the Applicant seeks orders that would mean that the IFM Agreement would no longer cover the Transferring Employees, and the Transferring Employees would be covered by either by the Banking and Finance Award (BFI Award) or by the terms and conditions outlined in their respective employment contracts (Black Kite Terms). [5] In support of its application, the Applicant provided submissions within its application form, as well as signed witness statements from two of the Transferring Employees, Mr Adrian Kerley (co-founder and Managing Partner of the Applicant) and Mr David Odgers (co-founder and also a Managing Partner of the Applicant). [6] The Commission directed the Applicant to file further submissions and material in support of its application, addressing the relevant provisions of the Act, and directed that it serve the submissions and material and a copy of its application on the Finance Sector Union (FSU) and on the employees covered by the IFM Agreement who were transferring their employment to the Applicant, along with a statutory declaration confirming that service had been effected as directed. [7] The Applicant filed its submissions on 19 May 2026 and confirmed by statutory declaration on 21 May 2026 that it had served its submissions and other materials on the FSU and all Transferring Employees. [8] In addition to filing submissions, the Applicant also filed a supplementary witness statement of Mr Odgers which annexed a comparison of each employee’s role at the Old Employer and the Applicant, as well as a comparison of the employment terms, including both financial and non-financial terms. [9] Neither the FSU nor any Transferring Employee filed any submissions in opposition to the application nor requested to be heard in relation to the application. Accordingly, I determined to deal with the application on the papers and without the need for a hearing. Legislation [10] Part 2-8 of Chapter 2 of the Act describes when a transfer of business occurs and s.312(1) of the Act provides for the transfer of certain instruments if there is a transfer of business from one employer to another employer. [2026] FWC 2483 3 [11] Section 311 of the Act provides: “311 When does a transfer of business occur Meanings of transfer of business , old employer , new employer and transferring work (1) There is a transfer of business from an employer (the old employer ) to another employer (the new employer ) if the following requirements are satisfied: (a) the employment of an employee of the old employer has terminated; (b) within 3 months after the termination, the employee becomes employed by the new employer; (c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer; (d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6). Meaning of transferring employee (2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business. Transfer of assets from old employer to new employer (3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between: (a) the old employer or an associated entity of the old employer; and (b) the new employer or an associated entity of the new employer; the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible): (c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and (d) that relate to, or are used in connection with, the transferring work. [2026] FWC 2483 4 Old employer outsources work to new employer (4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer. New employer ceases to outsource work to old employer (5) There is a connection between the old employer and the new employer if: (a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and (b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer. New employer is associated entity of old employer (6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.” [12] Section 313 of the Act provides: “313 Transferring employees and new employer covered by transferable instrument (1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then: (a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and (b) while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new [2026] FWC 2483 5 employer at the transfer time covers the transferring employee in relation to that work. (2) To avoid doubt, a transferable instrument that covers the new employer and a transferring employee under paragraph (1)(a) includes any individual flexibility arrangement that had effect as a term of the transferable instrument immediately before the termination of the transferring employee’s employment with the old employer. (3) This section has effect subject to any FWC order under subsection 318(1).” [13] Sections 317 and 318 of the Act relevantly provide: “317 FWC may make orders in relation to a transfer of business This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer. “318 Orders relating to instruments covering new employer and transferring employees Orders that the FWC may make (1) The FWC may make the following orders: (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. Who may apply for an order (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; [2026] FWC 2483 6 (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). Matters that the FWC must take into account (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.” [2026] FWC 2483 7 Initial matters [14] Based on the material before the Commission, I am satisfied that: • The employment of the Transferring Employees with the Old Employer ceased on 30 April 2026 (s.311(1)(a) of the Act). • The Transferring Employees became employed by the Applicant within three months after the termination of their employment with the Old Employer (s.311(1)(b) of the Act) and are transferring employees for the purposes of s.311(2) of the Act. • Having had regard to the Role Comparison Table submitted by the Applicant, the work the Transferring Employees perform for the Applicant is the same or substantially the same as the work they performed for the Old Employer (s.311(1)(c) of the Act). • There is a connection between the Applicant and the Old Employer. The Applicant declares that there is a ‘connection’ between the Old Employer and the Applicant within the meaning of s 311(3)(a)-(d) of the Act, given that the Transaction will result in the Applicant having the beneficial use of assets (relating to intellectual property owned by the Old Employer) for the purpose of its business, and the Old Employer will effectively be outsourcing some services to the Applicant. • The Transferring Employees are transferring employees in relation to the transfer of business (s.311(2) of the Act). • The Transferable Instrument covered the Old Employer and the Transferring Employees immediately before the termination of the Transferring Employees’ employment with the Old Employer. • The Transferable Instrument covers the Applicant and the Transferring Employees in relation to the transferring work, subject to any order of the Commission under s.318(1) of the Act (s.313 of the Act). • The Applicant has standing to apply for the orders it seeks pursuant to s.318(2) of the Act. Consideration [15] In deciding whether or not to make an order pursuant to s.318(1) of the Act, the Commission must take into account the matters set out in s.318(3) of the Act. The views of the Applicant (new employer) – s.318(3)(a)(i) [16] The Applicant supports the orders sought. The Applicant’s stated reasons for making the application include that the Applicant cannot afford to carry out the significant administrative burden, financial costs and operational complexity that the IFM Agreement [2026] FWC 2483 8 would demand on its small workforce, without suffering financial disadvantage for the Applicant and its Transferring Employees. [17] The views of the Applicant weigh in favour of the making of the orders. The views of the employees who would be affected by the order – s.318(3)(a)(ii) [18] There are currently up to 8 Transferring Employees covered by the IFM Agreement. Mr Odgers himself supports the making of the orders. Mr Odgers’s evidence is that each of the Transferring Employees have each individually affirmed to Mr Odgers that they are content for the IFM Agreement to not cover their employment with the Applicant. The Applicant also provided evidence that they have undertaken formal consultation with the Transferring Employees consisting of individual and group meetings, in relation to the details relating to the proposed transfer of employment, as well as information sessions about the Applicant’s intention to apply for an order under s 318 of the Act. The Applicant declares further that the Transferring Employees indicated they supported the intention to seek the s 318 orders, and believed that it did not make sense for the IFM Agreement to continue to apply to the Transferring Employees. The Applicant has further submitted in their Form F40 submissions that they are not aware of any Transferring Employee expressing any opposition to the granting of an order. [19] The Applicant contacted the FSU prior to and during the course of these proceedings, to advise them of the application. [20] Neither the FSU nor any Transferring Employee filed any evidence or submissions in opposition to the application and did not request to be heard in relation to the application. [21] The views of the Transferring Employees weigh in favour of the making of the orders. Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment – s.318(3)(b) [22] The Applicant submits that the Transferring Employees would not be disadvantaged by the orders in the application being made. In accordance with my Directions, the Applicant submitted a more fulsome comparison of the financial and non-financial terms between the IFM Agreement, and the Black Kite Terms. [23] The Applicant concedes that the IFM Agreement is more favourable to the Transferring Employees in a number of respects, in particular, its non-financial terms. This includes its paid leave arrangements for personal leave, compassionate leave, parental leave and additional end of year leave and redundancy payments. [24] However, the Applicant submits that the Black Kite terms are more favourable than the IFM Agreement in a number of key respects, that are important to both its employees and the business. This includes higher wages (other than those of the two co-founders, Mr Kerley and Mr Odgers who will benefit from alternative arrangements including future dividends arising from their ownership of the Applicant), performance bonuses and carried interest payments. The Applicant further elaborates that more favourable incentive arrangements are provided to [2026] FWC 2483 9 the Transferring Employees. These include that the Transferring Employees’ bonuses will no longer be subject to deferral arrangements as they were at the Old Employer, but rather they will be paid their annual bonus entitlements in the year their bonuses are earned. Furthermore, the carried interest component of the bonus entitlement is increasing at the Applicant from 50% of all performance fees in respect of “Growth Fund 3” at the old Employer, to 85% at the Applicant. This is estimated to be an additional $44 million payment to the team over 5-6 years, if future returns remain consistent with historical performance. In considering this submission, I have had regard to the fact that “past performance is not an indicator of future performance”. [25] While higher wages, bonuses and carried interest payments will be offered to employees regardless of whether the order is made, the Applicant is concerned that the continued coverage of the leave arrangements under the IFM Agreement would mean that additional staff would have to be employed to cover the leave. The evidence of Mr Odgers is that this would then reduce the profit to be distributed amongst employees and consequently the value of performance bonuses, carried interest payments and the ability to offer salary increases will be constrained, and the variable compensation model for the Transferring Employees will be disadvantaged. [26] The Applicant reinforces repeatedly in its submissions that the Applicant’s team are motivated by cash compensation, performance bonuses and carried interest payments more so than other benefits, and that it is preferable and advantageous to employees to reward them through these financial packages rather than other benefits such as more generous leave and redundancy provisions. [27] Having considered the submissions and evidence and the terms of the Agreement, the Award and the Black Kite terms, which are contractual in nature, I am satisfied that, overall, the Transferring Employees would not be disadvantaged if the proposed order is made. This factor weighs in favour of making the order. The nominal expiry date of the agreements – s.318(3)(c) [28] The nominal expiry date of the IFM Agreement is 12 September 2028. As discussed above, the Transferring Employees propose to not be covered by the IFM Agreement. This would mean that the Transferring Employees will not be covered by any enterprise agreement. I have taken this into consideration in determining the application. Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace – s.318(3)(d) [29] The Applicant declares that administering the IFM Agreement would have a material negative impact on the productivity of the Applicant. The Applicant points to the relative difference in size and scale between the Applicant and the Old Employer, as well as the proposed staffing arrangements, where the Applicant’s business will enjoy low business and administrative overheads compared to the Old Employer. The Applicant submits that its success will be predicated on attracting experienced private equity professionals, including attractive pay packages and variable pay. [2026] FWC 2483 10 [30] Mr Odgers gives evidence that it would be required to employ or engage specialist expertise in order to manage two different industrial instruments (assuming the orders are not made), at significant cost to the business. [31] I accept that the continued coverage of the IFM Agreement would increase the administrative work associated for the Applicant, and may also have some negative impact on the productivity within the Applicant’s workplace, particularly where substantial resources would be detracted to maintain compliance with the IFM Agreement, which would otherwise – on the Applicant’s provision of uncontested evidence - feed into the financial incentivisation and remuneration packages the Applicant business primarily relies on for growth. [32] 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) [33] The Applicant declares that it will be disadvantaged in seeking to attract talent from its competitors, specifically others within the industry who are not covered by any enterprise agreement or are otherwise not encumbered by the costs and inefficiencies that would be imposed by the IFM Agreement specifically. The Applicant also declares that it is common for the people they seek to hire to be used to receiving benefits such as high bonuses, as opposed to be attracted by enhanced redundancy packages or leave entitlements, and this goes toward their point that they would have difficulty attracting the talent they seek. [34] I have also considered that the Applicant declares that management of two different industrial instruments would require the Applicant to employ or otherwise engage specialist expertise, which would add substantially to their costs. A further practical effect the Applicant cites is that additional team members would need to be hired, to cover the generous leave entitlements offered by the IFM Agreement. This is all estimated by the Applicant to incur costs in the vicinity of at least $1 million per annum. This would also have the impact, the Applicant states, of diverting costs from the Applicant’s employees’ high remuneration packages and impact materially on the Applicant’s profitability and potentially its financial viability. [35] On the basis of the above, I am persuaded on the evidence of the Applicant that there would be moderate to potentially significant economic disadvantage as a result of the ongoing coverage of IFM Agreement to the Applicant, such that the Applicant would be at a relative disadvantage to its competitors in the industry. I consider that this weighs in favour of making the orders. The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer – s.318(3)(f) [36] The Applicant submits that other than the IFM Agreement, they are not party to any enterprise agreement. They note that some of their employees may be covered by the BFI Award, including any new non-transferring employees. They submit that having the IFM Agreement cover some transferring employees and not others, such as new non-transferring employees, is liable to create disharmony and administrative difficulties in a fledgling business. [2026] FWC 2483 11 [37] I do consider there is at least some degree of synergy between the IFM Agreement and the BFI Award, given that they govern terms and conditions in the same industry, however, the terms are substantially different. Furthermore, I note that only some of the Applicant’s employees will likely be covered by the BFI Award. [38] I consider this to be a neutral factor. The public interest – s.318(3)(f) [39] The Applicant relies on evidence to the effect that the establishment of the Applicant was to prevent the Transferring Employees from otherwise becoming unemployed where the private equity division of the Old Employer was being closed down, and that it is in the public interest that the Transferring Employees are able to mitigate losses that would otherwise have been incurred by becoming unemployed for an indeterminate time, and, instead, seek to establish or be involved in a (hopefully) profitable new business. The Applicant further contends that it is in the public interest that new small businesses be encouraged to form and succeed, and they further submit that the Black Kite terms, particularly compensation and benefits offered, are tailored toward enhancing sustainable revenue, preservation of employment opportunities, and attracting additional employees. The Applicant submits that the IFM Agreement would impede this goal, by forcing the Applicant to carry costs of an industrial instrument which is otherwise bespoke to the operations of the large, multi-faceted and well- resourced global business that constitutes the Old Employer. [40] I accept the Applicant’s submissions, and in all the circumstances, and having considered the materials before the Commission, I am satisfied that there are no public interest considerations that weigh against making the orders sought. Conclusion [41] Having taken into account the considerations in s.318(3) of the Act, I consider that the following orders should be made: 1. From the date of this order, pursuant to section 318(1)(a) of the Fair Work Act, the IFM Investors Agreement 2025 (AG2025/2736) will not cover Black Kite Partners Pty Ltd and the following Transferring Employees: (a) Belinda Filippazzo-Cejas; (b) Scott Butchers; (c) Jonathan Ramasamy; (d) Daniela Wegner; (e) Rebecca Chen; (f) Adrian Kerley; (g) David Odgers; and (h) Stuart Wardman-Browne. [2026] FWC 2483 12 [42] The order giving effect to this decision will be issued separately in <PR811631>. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR811630>