1 Fair Work Act 2009 s.318 - Application for an order relating to instruments covering new employer and transferring employees Mambourin Enterprises Ltd (AG2026/1390) DEPUTY PRESIDENT MASSON MELBOURNE, 10 JULY 2026 Application for orders relating to instruments covering new employer and transferring employees. [1] An application has been made pursuant to s 318 of the Fair Work Act 2009 (the Act) by Mambourin Enterprises Ltd (Mambourin) in which it seeks an order from the Fair Work Commission (the Commission) that the September 2011 Fair Work Act 2009 Single Enterprise Agreement Broadmeadows Disability Services ABN 56 089 402 (the BDS Agreement) not cover Mambourin Enterprises Ltd (Mambourin) and employees whose employment transfers from BDS Support Services (BDS) to Mambourin (Transferring Employees). Instead that any such employees be covered by the Social, Community, Home Care and Disability Services Award 2010 (SCHADS Award)1. [2] Directions were issued by the Commission on the 18 June 2026 allowing for submissions and materials to be filed in relation to the application by: Mambourin, any Transferring Employees, the Health and Community Services Union (HSU) and the Australian Education Union (AEU). [3] In accordance with the directions issued, Mambourin filed its material on 22 June 2026 which included an affidavit of Ms Danielle Carey-Munro who is the Chief Executive Officer (CEO) of Mambourin. No submissions or materials were received from any of the Transferring Employees. The HSU filed material in response on 29 June 2026, for which the AEU expressed its support. Mambourin sought and was granted leave to file reply submissions. Parties were then advised that if any party sought to be heard further, a hearing listed for 3 July 2026 would proceed, otherwise the matter would be determined on the papers. The parties expressed agreement to the matter being determined on the papers. Background and evidence [4] Ms Danielle Carey-Munro’s evidence in her affidavit (the Carey-Munro Statement), the relevant elements of which are set out below, were not rebutted nor was there any evidence to the contrary led by any other party to the proceedings. 1 AE889228 [2026] FWC 2634 DECISION [2026] FWC 2634 2 [5] Mambourin is a not for profit, disability service provider operating in the State of Victoria, offering a range of services for people living with disabilities. It has been delivering disability services since 1972 and is a registered National Disability Insurance Scheme (NDIS) provider. It supports approximately 500 NDIS participants across Victoria and employs approximately 300 staff.2 Mambourin and its employees are covered by the Social, Community, Home Care and Disability Services Award 20103 (the SCHADS Award) and is currently negotiating the Mambourin Enterprises Limited Agreement 2026-2030 (Mambourin Agreement), a new enterprise agreement with its employees. 4 [6] On 8 September 2025, Mambourin entered discussions to acquire the business of BDS which provides disability support services to adults in Broadmeadows. The then CEO of BDS, Ms Barb van den Vlekkert, articulated that the company could not continue to operate past 12 months, as reserves were being depleted in covering year-on-year operational deficits. In June 2025, the BDS Board agreed to seek a not-for-profit NDIS registered provider for a merger with like values that was financially viable. The BDS CEO stated to Ms Carey-Munro during an 8 September 2025 meeting, that the key reason for the year-on-year deficits was due to the beneficial leave entitlements provided to employees under the BDS Agreement, which had become unsustainable. In July of 2025, BDS employees were asked to vote on a new enterprise agreement, proposing to remove these leave entitlements and revert to the SCHADS Award. The vote was not successful. Given the outcome of the vote, a merger was sought as a matter of urgency. BDS had a net deficit of $750,000 in the 2024/2025 financial year.5 [7] Several factors were said by Ms Carey-Munro to have contributed to BDS’s year-on- year deficits and its financial position; (a) BDS operated from a single site and lacked the scale necessary to dilute the corporate overhead costs required to operate an NDIS service; and (b) the terms and benefits in the expired BDS Agreement continued to apply to existing employees, which elevated wage costs to an unsustainable level (above 80% of total revenue) and negatively impacted on its bottom line, including: (i) annual leave entitlements of 5 to 6 weeks; (ii) personal leave entitlements of 15 days (5 days without a certificate and 10 days with a certificate); (iii) paid lunch breaks, which are not a sector norm; (iv) extensive operating hours (6am to 10pm, and for Day Service 7.30 to 10pm); and 2 Carey-Munro Statement, at [4] 3 MA000100 4 Ibid at [5] 5 Ibid at [[6]-[9] [2026] FWC 2634 3 (v) some long-term staff are paid at a higher rate than the interpreted rate.6 [8] Due to the urgency of BDS’s financial position, the legal transfer was to take place between September-December 2025, with operational restructures due to occur in the workplace from January 2026. On 19 September 2025, Mambourin and BDS signed the Heads of Agreement and Confidentiality Agreement, which commenced the due diligence process related to the merger. On Monday 1 December 2025, the BDS Board held a special General Meeting with its members to pass a resolution that Mambourin would become the sole member of BDS and would take formal control over the BDS entity. This resolution was unanimously approved. Face-to face meetings were subsequently held by Ms Carey-Munro with BDS employees, BDS families, and participants on 5 December 2025. During these meetings, Ms Carey-Munro explained BDS’s financial distress and that if a merger solution was not found, BDS would need to close its doors by September 2026. On 19 December 2025, Mambourin became the sole member of BDS through a legal transfer of business. The number of BDS employees affected by the Business Transfer was 47, of which 24 were permanent full-time and part-time employees.7 [9] On 12 May 2026, Mambourin and BDS entered into an agreement (Transfer Agreement), to transfer its business and assets from BDS to Mambourin (Business Transfer). Pursuant to that Transfer Agreement, Mambourin agreed to make offers of employment to all 47 current employees of BDS, in the same or substantially similar role they undertook with BDS, working from the same location. It was expected that the full Business Transfer would occur on 30 June 2026, with BDS employees commencing employment with Mambourin on 1 July 2026. Mambourin understands that the Business Transfer triggers a transfer of business under the Act, and that the BDS Agreement will accordingly transfer with the BDS employees, unless the Fair Work Commission orders otherwise.8 [10] Mambourin’s application is motivated by several factors; • to allow Mambourin to apply uniform conditions of employment to its existing employees and employees transferring from BDS; • to improve operational efficiency and simplify compliance and payroll process by ensuring that BDS employees transferring to Mambourin are covered by the same industrial instrument as existing employees; • to avoid additional and ongoing costs associated with administering duplicate systems and processes; and • to mitigate the economic disadvantage that would arise if the BDS Agreement were to apply to transferring employees, in circumstances where the additional leave 6 Ibid at [10] 7 Ibid at [12]-[19] 8 Ibid at [20-]-[21] [2026] FWC 2634 4 entitlements cannot be accommodated within the NDIS disability support worker cost model (DSWCM) and cost structures. [11] In support of her evidence in relation to BDS’s financial position that existed prior to the Business Transfer, Ms Carey Munro referred to a sector view of the DWSCM. As modelled by Ability Round Table, which represents both the disability peak body and government for benchmarking sector data. A graph produced in her statement showed that BDM was situated in the lowest 25% of service providers in terms of profitability, reflecting four consecutive years of median losses.9 [12] According to Ms Carey-Munro, Mambourin’s more positive financial position can be attributed in part to its operation under the SCHADS Award, as there is a recognised link between the Fair Work Commission wage outcomes and NDIS price indexation, which ensures that increases to minimum wage rates are reflected in corresponding adjustments to NDIS pricing. This she states, provides a labour cost setting that supports a NDIS provider to manage its largest cost centre, that being labour, to what it can claim in funding. Any deviation from this tight funding model and the SCHADS Award, such as that offered by BDS in relation to leave entitlements, has a direct impact on margins and therefore profitability. [13] This link between the SCHADS Award and NDIS funding has, according to Ms Carey Munro, contributed to a broader sector move towards alignment of employment conditions with the SCHADS Award, reducing some of the anomalies in the labour cost base. This still leaves a provider underfunded based on the proposed DSWCM margin of 2%, which she claims is difficult to achieve with any deviation from the SCHADS model - as this is apparent by the number of providers operating at a loss. According to Ms Carey-Munro, supporting evidence was provided in data submitted to the NDIS and Government on a 6 monthly basis as required, and is well accepted as valid data by the sector peak body.10 [14] Absent of an order from the Commission in the terms sought by Mambourin, there will be a period where current Mambourin employees will be receiving entitlements in accordance with the SCHADS Award, and Transferring Employees will receive entitlements in accordance with the BDS Agreement. Ms Carey-Munro states that the more generous leave and paid training entitlements under the BDS Agreement that apply to permanent full-time and part-time employees would have practical operational consequences, including more frequent backfilling and adjustments to rosters to maintain roster coverage, which is critical in a disability support environment where continuity of care is key. She further states that this would increase supervisory and payroll administration demands, including the need to manage different leave frameworks and accrual arrangements across two groups of employees. It would also limit operational flexibility, as additional time and resources would need to be directed towards sourcing replacement staff, responding to short-notice absences, and re-configuring rosters. There would also be, according to Ms Carey-Munro, a need for Mambourin to manage two separate payroll systems if the different entitlements are maintained.11 9 Ibid, Graph 1 10 Ibid, at [25], Graphs 2 & 3 11 Ibid at [27]-[28] [2026] FWC 2634 5 [15] Ms Carey-Munro states that Mambourin’s funding model is heavily reliant on participant-based revenue under the National Disability Insurance Scheme (NDIS), and as it does not receive any direct or recurrent core funding, approximately 91% of its revenue is derived from NDIS funding allocated to its participants. She explains that the pricing structure applicable to Mambourin’s services is determined by the National Disability Insurance Agency (NDIA), through the DSWCM. That model sets hourly price limits by reference to assumed labour costs, including salary and direct on costs, and an allocation for operational and corporate overheads. It incorporates a modest margin of 2%, which significantly constrains the capacity of registered providers, including Mambourin, to absorb additional or unanticipated costs. [16] Ms Carey-Munto further states that the DSWCM takes into account 20 days of annual leave, 10 days of personal leave, 10 public holidays per annum and the accrual of 4.33 days of long service leave each year. To the extent a provider offers leave entitlements in excess of those assumptions, the additional cost is not reflected in the pricing model and must instead be met from the provider’s own surplus revenue or cash reserves. She states that the model also does not account for a range of mandatory costs associated with service delivery, such as compliance obligations, worker screening requirements and training, all of which represent material and ongoing financial commitments. Further to this, the additional 15 days of annual and personal leave provided under the BDS Agreement would according to Ms Carey-Munro impose a significant and ongoing financial burden on Mambourin were that instrument to apply to transferring employees.12 [17] Ms Carey-Munro states that the transfer of the BDS Agreement would require Mambourin to administer two separate industrial instruments across employees performing substantially similar work, which would introduce a level of payroll and compliance complexity that Mambourin does not currently deal with and would require duplication across its systems and processes. She says that Mambourin has estimated that the incremental administrative and operational cost of maintaining these parallel arrangements would be approximately $70,000 per month, or $840,000 per annum. This is comprised of the following costs; (a) systems licensing costs (including payroll, CRM and accounting systems) of approximately $35,000 per month; (b) the cost of employing an additional employee to undertake payroll processing and administration, estimated at approximately $5,000 per month; (c) additional people and culture costs associated with award interpretation, enterprise agreement compliance, and employee relations, estimated at approximately $8,000 per month; (d) workforce planning and rostering costs of approximately $5,000 per month; (e) additional management oversight required to operate under two separate industrial frameworks, estimated at approximately $8,000 per month; 12 Ibid at [30]-[34] [2026] FWC 2634 6 (f) system administration costs arising from a lack of integration between systems (ICT), estimated at approximately $4,000 per month; and (g) additional compliance and workflow information management costs, estimated at approximately $5,000 per month. [18] Recognising that the effect of the application if successful would disadvantage some BDS employees, Mambourin sought to consult with BDS employees to ensure they were provided with relevant information and were aware of the application. The following steps were taken by Mambourin according to Ms Carey-Munro; • on 25 and 27 May 2026, Ms Carey-Munro held in-person meetings with BDS employees to discuss the Business Transfer, including the consultation process for the offers of employment and Mambourin’s intention to make the proposed application and what that would mean for BDS employees;13 • 100% of BDS employees attended the meetings on 25 & 27 May 2025, as evidenced by attendance records;14 • during the meetings on 25 & 27 May 2025, BDS employees were provided with a letter explaining the Business Transfer,15 a Frequently Asked Questions document16 (the FAQ Document) and a document summarising the differences between the terms of the proposed Mambourin Agreement with the SCHADS Award (the Comparison Document);17 • an additional on-line meeting was scheduled by Ms Carey-Munro for 28 May 2026 to discuss the Business Transfer and proposed application, but no persons attended;18 • on 5 June 2026, emails were sent to all 47 BDS employees to which were attached an offer of employment (Offer Letter) and a contract of employment;19 • to partially mitigate the disadvantage to permanent BDS employees should the order sought be granted, Mambourin included in the Offer Letter to Transferring Employees that it would maintain the current annual leave and personal leave entitlements in the BDS Agreement for a period of time, expiring either on 30 September 2026 (being three months) or when the Mambourin Agreement commences, whichever is earlier;20 and 13 Ibid at [40] – [41] 14 Ibid at [42], Annexure E & F to F40 application 15 Annexure B to F40 application 16 Annexure C to F40 application 17 Annexure D to F40 application 18 Carey-Munro Statement, at [45] 19 Ibid at [46]-[47], Annexure J to F40 application, Template Offer Letter, Annexure K to F40 application, contract of employment 20 Ibid at [48] [2026] FWC 2634 7 • 100% of BDS employees have accepted Mambourin’s offers of employment.21 [19] Ms Carey-Munro states that during the meetings held on 25 and 27 May 2026, BDS employees were given the opportunity to raise any questions or concerns they had regarding the Application, and a further opportunity was provided at the scheduled on-line meeting on 28 May 2026. Mambourin also invited BDS employees via an email22 sent to them on 29 May 2026 to participate in an anonymous on-line survey conducted via the on-line voting platform, Vero (the VERO Survey). The survey was open from 9.00am on 1 June to 5.00pm on 5 June 2026 and posed the following question ‘Are you comfortable moving off the BDS agreement and onto the SCHADS Award that Mambourin staff are currently employed under?’ The Vero Declaration of Results23 reveal that of the 47 BDS employees invited to participate in the survey, 39 responded (83% response rate) and 38 voted ‘Yes” in response to the question posed (81% of all BDS employees).24 Statutory Provisions [20] Section 318 of the Act sets out the circumstances in which an order may be made by the Commission in respect of a new employer and Transferring Employees: 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; 21 Carey-Munro Statement, at [51] 22 Annexures G & H to F40 application 23 Annexure I to F40 application 24 Carey-Munro Statement, at [52]-[56] [2026] FWC 2634 8 (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). 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: [2026] FWC 2634 9 (a) the time when the transferring employee becomes employed by the new employer; (b) the day on which the order is made.” Consideration [21] Before turning to consider the order sought by Mambourin, it is necessary to establish that the BDS Agreement is a transferrable instrument and would cover Mambourin and the Transferring Employees, subject to any order of the Commission. Transferable Instrument [22] I am satisfied that the BDS Agreement is a transferrable instrument pursuant to s 312(1)(a) of the Act. I am further satisfied that. (i) the employment of the Transferring Employees with BDS terminated on or about 30 June 2026 (s. 311(1)(a)); (ii) within 3 months of termination of employment, the Transferring Employees will be employed by Mambourin (s. 311(1)(b)); (iii) the work of the Transferring Employees to be performed for Mambourin is substantially the same or similar to the work performed by the Transferring Employees for BDS(s. 311(1)(c)); and (iv) there is a connection between BDS and Mambourin within the meaning of s 311(3) of the Act. [23] As a consequence of the above I am satisfied that the BDS Agreement will cover Mambourin and Transferring Employees, subject to any order the Commission may make. It is also the case that Mambourin, the new employer, has made the application, thus satisfying the requirements of s. 318(2) of the Act. [24] Having been satisfied as to the necessary jurisdictional requirements of ss. 311 and 312 being present, I will now turn to each of the matters that I am required to consider under s. 318(3). The views of the new employer and Transferring Employees [25] Mambourin seeks that the BDS Agreement does not operate in its business in respect of Transferring Employees and that the SCHADS Award covers the Transferring Employees. While no Transferring Employees provided their views to the Commission, Mambourin invited them to participate in a confidential survey conducted by Vero in early June 2026. As stated above, 39 employees participated in the survey with only one employee objecting to being covered by the SCHADS Award rather than the BDS Agreement. The HSU and AEU oppose the application. [2026] FWC 2634 10 [26] In opposing the application, the HSU raise the following concerns. BDS employees were not able to properly understand the impact and loss of beneficial terms and conditions they enjoyed under the BDS Agreement., Firstly, because the question was not posed in a neutral manner. Secondly, the materials provided by Mambourin do not strongly suggest that employees were aware while completing the Vero Survey what the actual consequence of transitioning would be in relation to their entitlements. Further, the provision of the Comparison Document relating to the SCHADS Award and future Mambourin Agreement that Mambourin was in respect negotiations still underway and was not transparent about whether the Transferring Employees would be properly covered by that proposed agreement. [27] I find the HSU’s submissions to be unconvincing and tellingly, they have not sought to call any direct evidence from Transferring Employees that might have supported their criticisms of the information provided to those employees. As regards the specific points raised by the HSU, the following points are made. [28] Firstly, the complaint about the question not being neutral is rejected. Further to the information provided to employees which is discussed below, the question invited a simple yes or no response. The question was not loaded such that it invited a particular response. There is no vice in the question in my view. [29] As for the information provided to employees, the letter sent to BDS employees on 25 May 2026 made clear that the BDS Agreement includes unsustainable conditions. That if Mambourin’s application were successful, BDS employees would be covered by the SCHADS Award and would lose some of the additional leave entitlements under the BDS Agreement. The letter also explains the expectation that BDS employees would eventually be covered by a Mambourin Agreement that it was negotiating at the time. In my view, there is nothing inaccurate or misleading in the content of the 25 May 2026 letter. [30] Further, the FAQ Document explicitly identifies the consequences for Transferring Employees if the BDS Agreement did not transfer to Mambourin. That is the loss of additional annual and personal leave entitlements they were entitled to under the BDS Agreement, if they were instead covered by the SCHADS Award. To suggest that Transferring Employees would not have been aware that being covered by the SCHADS Award would result in the loss of the more beneficial annual and personal leave entitlements is not accepted. I also note that Ms Carey-Munro held face-to-face meetings with all Transferring Employees following the provision of the FAQ Document. [31] The complaint about the Comparison Document appears to be that the provision of that document may have led Transferring Employees to believe that more beneficial entitlements would automatically apply to them in circumstances where a Mambourin Agreement was still subject to negotiation and they (the Transferring Employees) were not yet employees of Mambourin. I accept that the explanation provided in the 25 May 2026 letter was not a forensic explanation of the agreement making process or of the proposed agreement’s scope and coverage. It was however, in my view, sufficiently accurate for Transferring Employees to understand that an agreement was being negotiated by Mambourin with its employees, that the agreement was ‘intended’ to apply to them when it was finalised and that it would include certain conditions that were more favourable than the SCHADS Award. I find nothing misleading or inaccurate in the presentation of that information. [2026] FWC 2634 11 [32] It follows from the foregoing that I am satisfied that Transferring Employees understood at the time of participating in the Vero Survey that permanent full-time and part-time employees stood to lose more generous leave entitlements if they were covered by the SCHADS Award. The fact is that none of the affected BDS employees have sought to be heard in these proceedings or been called by the HSU or AEU to give evidence. This leaves me with a fragile basis to conclude that employees were not content with proposed coverage by the SCHADS Award as opposed to the BDS Agreement. That is not to say that I imagine Transferring Employees would be overjoyed at the prospect of losing more generous leave entitlements. The alternative however of an uncertain future if the transfer of business were not to have proceeded is also likely to have been a relevant consideration of employees in my view. [33] Taking into account the views of Mambourin and the Transferring employees, I am satisfied that this weighs in favour of granting the order sought. Whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment [34] Having reviewed the key terms and conditions in the BDS Agreement and the SCHADS Award, I am satisfied in the circumstances that permanent full-time and part-time Transferring Employees will be disadvantaged by the order sought if granted in relation to their terms and conditions. Specifically, lost BDS Agreement benefits would include; • annual leave would be reduced from 5-6 weeks to 4 weeks per annum; • personal leave would be reduced from 15 to 10 days per annum; • compassionate leave entitlement would be reduced from 3 days to 2 days per occurrence; • the entitlement to paid maternity leave under the BDS Agreement of 4 weeks paid leave would be lost with the NES entitlement of unpaid parental leave applying; • a reduced sleepover allowance; and • unpaid carer’s leave for casuals. [35] The SCHADS Award does contain some more beneficial entitlements including; • a range of allowances not provided for in the BDS Agreement – first aid allowance, on- call allowance, telephone reimbursement, travelling expenses and vehicle allowance; • the meal allowance in the SCHADS Award is more generous than the BDS Agreement; • the SCHADS Award allows for time off in lieu (TOIL) for overtime, a feature not present in the BDS Agreement; • the higher duties entitlement is more beneficial in the SCHADS Award; and [2026] FWC 2634 12 • the deduction of pay that may be made by Mambourin due to lack of notice by an employee on resignation is limited to one week under the SCHADS Award where no such limit is imposed under the BDS Agreement. [36] I accept that the more beneficial entitlements under the SCHADS Award do not fully ameliorate the more beneficial BDS Agreement entitlements that would be lost if the order were granted. I note however that there are several contingent benefits under the Agreement, including personal and carers leave, paid parental leave, compassionate leave, and the sleepover allowance. I also note that negotiations for a Mambourin Agreement have commenced that would, if an agreement is reached, result in a number of identified improvements to the terms otherwise provided by the SCHADS Award. That said, it would be unsafe to assume about when an agreement will be reached or what the final form and content may be. I therefore do not take into account the potential benefits that may flow from a Mambourin Agreement if finalised. [37] Having regard to the above and notwithstanding the contingent nature of benefits lost from the BDS Agreement if Mambourin’s application succeeds, I find that Transferring Employees would be disadvantaged by the application granted, particularly full-time and part- time employees in respect of annual leave and to a lesser extent personal leave entitlements. While that loss is ameliorated to some extent, it remains a disadvantage which weighs against granting the order sought. If the order relates to an enterprise agreement—the nominal expiry date of the agreement [38] The nominal expiry date of the BDS Agreement was 30 September 2015. If the order sought were granted then Transferring Employees will be covered by the SCHADS Award and will be able to participate in bargaining for the new Mambourin Agreement as negotiations are currently underway. The fact that the BDS Agreement is an old agreement, over 10 years beyond its nominal expiry date, and given the capacity of Transferring Employees to participate in bargaining for the new Mambourin Agreement, this weighs in favour of granting the order sought. Whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace [39] The transferable instrument would, on Ms Carey-Munro’s evidence, require Mambourin to maintain terms and conditions of employment in respect of Transferring Employees performing similar duties and functions, to the balance of Mambourin’s workforce who are employed under the terms of the SCHADS Award. This according to Ms Carey-Munro would result in Mambourin incurring incremental administrative and operational costs of maintaining parallel arrangements that would be approximately $70,000 per month, or $840,000 per annum. The HSU challenge these impacts and estimated costs but declined the opportunity of cross- examining Ms Carey-Munro on her evidence. In these circumstances, I accept the unchallenged evidence that Mambourin would incur additional administrative costs if required to maintain two sets of conditions. In the circumstances of the thin or non-existent profit margins routinely experienced by service providers in the sector, on which Ms Carey-Munro also gave [2026] FWC 2634 13 unchallenged evidence, the additional costs likely to be incurred is in my view significant. This weighs in favour of granting the order sought. Whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer [40] Mambourin submits that it would, if the s 318 order is not granted in the terms sought, suffer economic disadvantage, including increased costs and payroll administrative difficulties arising from the requirement to maintain and comply with the BDS Agreement for a relatively small number of employees, compared to the balance of their workforce employed under the SCHADS Award. I agree. This weighs in favour of granting the order sought. The degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer [41] The SCHADS Award already covers Mambourin and its employees engaged in similar roles to those within the scope of the BDS Agreement. The terms of the SCHADS Award are in some respects less favourable than the BDS Agreement as discussed above. The differences between the two agreements would in my view be problematic if both agreements applied to the same class of employees. To that extent, I am satisfied there is a lack of synergy between the transferable instrument and the SCHADS Award which covers Mambourin and its employees. This weighs in favour of the order sought by Mambourin. The public interest [42] The HSU submit that granting the order sought would be contrary to the public interest because it (the application) is aimed at and would weaken the bargaining power of the Transferring Employees in the context of bargaining for the Mambourin Agreement. It argues that tactics engaged in by the Respondent to weaken the position of employees in bargaining are contrary to the public interest. I find the HSU’s submission to be entirely speculative, unsupported by any evidence and is rejected. Contrary to the HSU’s submission, I am satisfied that ensuring the maintenance of sustainable services to vulnerable members of the community, which would be supported by granting the orders sought, would be in the public interest. That is so because of the unchallenged evidence of Ms Carey-Munro on the financial pressures faced by providers in the disability service sector. I am satisfied that it is in the public interest to grant the order sought by Mambourin. This weighs in favour of granting the order sought. Conclusion [43] I have found that there would be some disadvantage to a small number of employees arising from granting the order sought. That disadvantage is comfortably outweighed by the other factors which I have found weigh in favour of granting the orders sought. Having considered the application and supporting material and taking into account each of the requirements in s. 318(3) of the Act, I am satisfied that the order sought should be granted. [44] An Order (PR812002) will be separately issued which shall take effect in respect of each Transferring Employee from 10 July 2026 or the date from which they are employed by Mambourin, whichever is the later date. [2026] FWC 2634 14 DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR812001>