Fair Work Commission Case Review: Frontier Advisors Pty Ltd T/A Frontier Advisors – Application Under s 768BA [2025] FWC 3735

This case concerns a significant decision under Part 6-3A of the Fair Work Act 2009, dealing with employees transferring from a NSW State Government instrument into the federal industrial system.

Frontier Advisors sought an order under s 768BA that the State Super Enterprise Agreement 2024–2027 (the STC Agreement) would not continue to apply to transferring employees once they commenced with Frontier. The Commission granted the order.

The decision illustrates how the Fair Work Commission assesses the interaction between copied State instruments and federal awards when employees move to a new employer.

Fair Work Commission Case Review: Frontier Advisors Pty Ltd T/A Frontier Advisors - Application Under s 768BA [2025] FWC 3735

Background

Frontier Advisors and the SAS Trustee Corporation Staff Agency (State Super) entered into a Transition Agreement on 10 October 2025 to transfer investment-related functions and staff. Thirteen employees accepted offers of employment with Frontier, with the transfer to occur on 1 December 2025. Their move was not dependent on the Commission’s decision.

The transferring employees were covered by the STC Agreement, a copied State collective agreement under the Act. Frontier sought an order that the STC Agreement not apply to it or the transferring group, meaning the Banking, Finance and Insurance Award would instead underpin their new contractual terms.

Frontier provided substantial supporting material, including:

• consultation records dating from May to October 2025

• comparison tables of terms and conditions

• template employment contracts• remuneration and policy documents• Letters of Support from 12 of the 13 transferring employees

No transferring employee opposed the application.

Statutory Framework

Section 768BA allows the Commission to order that a copied State instrument not cover a transferring employee, and instead that an enterprise instrument applying to the new employer does.

In deciding whether to make such an order, the Commission must consider:

• the views of affected employees and the new employer

• whether disadvantage would result

• the expiry date of the copied State instrument

• productivity impacts

• economic disadvantage to the new employer

• degree of synergy between instruments

• the public interest (s 768BA(3))

The Commission’s Assessment

1. Views of Employees and Employer

Frontier supplied signed Letters of Support from almost all transferring employees, together with evidence of extensive consultation. No opposition was received. This weighed strongly in favour of the order.

2. Whether Employees Would Be Disadvantaged

The Commission analysed a detailed comparison of conditions between the STC Agreement and Frontier’s employment terms.

Employees would receive improved benefits in:

• paid parental leave• annual, personal/carer’s, long service and Christmas leave

• short-term incentive arrangements• preserved redundancy entitlements (grandfathered contractually)

Some conditions would be less favourable, including:

• overtime penalties

• paid lactation breaks• certain reimbursements

• specific leave accrual differences• change from a 35-hour to 38-hour week (which Frontier argued reflects actual practice)

Deputy President Masson concluded that, on balance, transferring employees would not be disadvantaged.

3. Nominal Expiry Date of the STC Agreement

The STC Agreement expires in June 2027. Since the employees would not be covered by any enterprise agreement after transfer, they would remain free to pursue bargaining. This was treated as neutral.

4. Productivity Impacts

The Commission accepted Frontier’s submission that applying the STC Agreement to only a small group of employees would create:

• operational inefficiencies

• division within the workforce• administrative burden

• inconsistency in employment structures

This factor strongly supported granting the order.

5. Economic Disadvantage to Frontier

Frontier would face ongoing financial and compliance difficulty if forced to maintain a separate industrial instrument for only 13 employees. This weighed in favour of the application.

6. Synergy Between Instruments

There was little alignment between the STC Agreement and Frontier’s Award-based framework. The Commission considered streamlining necessary and sensible.

7. Public InterestDeputy President Masson found no public-interest reason not to grant the order.

Outcome

The Commission granted the order, determining that:

• no factor weighed against approval, and

• multiple considerations strongly supported Frontier’s position.

The order (PR794581) would take effect from the later of 6 December 2025 or the date the employees commence employment with Frontier.

MYUNION Commentary

This decision is a clear example of how the Fair Work Commission balances workforce cohesion, consultation quality, and the overall fairness of employment terms when assessing transfers from State-based industrial instruments.

Where transferring employees understand the changes, broadly support them, and receive genuinely comparable (or improved) conditions, the Commission is prepared to streamline industrial coverage to reflect modern organisational needs.

For workers, the case highlights the importance of transparent consultation, written comparisons of entitlements, and the value of ensuring that future employment arrangements are clearly explained before transfer.

For employers, it reinforces the need to demonstrate genuine engagement, provide documentary evidence, and show that no disadvantage will arise before requesting orders under s 768BA.

Read the Full Decision on the Fair Work Commission Website HERE