COBDEN DISTRICT HEALTH SERVICE INC., ANMF AND HWU ENTERPRISE AGREEMENT 2025

Application for approval of the Cobden District Health Service Inc., ANMF and HWU Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the Cobden District Health Service Inc., ANMF and HWU Enterprise Agreement 2025 (the Agreement). The employer is Cobden District Health Services Inc (Cobden). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union Victoria No 1 Branch (HSU) (collectively, the Unions) are bargaining representatives for the Agreement.

[2] Section 205A(2) has the effect that if an Agreement contains a delegates' rights term that is inferior to the delegates' rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is "taken to be a term of the Agreement" under s 205A(2)(b). The inferior delegates' rights term in the Agreement is rendered a nullity and of "no effect" under s 205A(2)(a).

[3] In Construction, Forestry, and Maritime Employees Union v Australian Industry Group,[1] a Full Court of the Federal Court identified several features of a workplace delegates' rights clause which appeared in modern Awards as being "errors" insofar as they impermissibly limited the rights set out in s 350C of the Act. These included limitations as to representation only to employees of the employer of the delegate, rather than all employees who work in the enterprise, limits on communication with employees "for the purpose of representing their industrial interests" and the making of delegates' entitlements conditional upon compliance with a range of requirements.[2]

[4] Clause 62 contains similar limitations identified by the Federal Court, which were put to the parties in this matter. The ANMF provided the following position on 10 February 2026:

"During bargaining, the parties negotiated a term that was more beneficial than the Award clause. The specific provision is clause 62.8 of the proposed Agreement, which provides for 2 days of training in each subsequent year, as opposed to the 1 day of training provided by the Award clause. If the proposed Agreement were to simply adopt the Award clause, the more beneficial training entitlement would no longer apply."

[5] The ANMF brought my attention to the approach of Redford C in [2026] FWCA 219 to resolve a similar issue by applying s 205A(2) and subsequently vary the Agreement under s 218A.

[6] I wrote to the parties inviting any opposition to the following two-step approach:

Step 1: Under s 205A(2), the entirety of the [underpinning] Award Terms [being the Nurses Award 2020 and the Aged Care Award 2010] becomes part of the Agreement; and then

Step 2: Under s 218A, the subclause headed 'Entitlement to reasonable access to training' in the Award Terms is replaced with the following text (which reproduces cl 62.8 of the Agreement):

62.8 Entitlement to reasonable access to training

The employer must provide a workplace delegate with access to up to 5 days of paid time during normal working hours for initial training and at least 2 days each subsequent year, to attend training related to representation of the industrial interests of eligible employees, or to attend trade union conferences and courses, subject to the following conditions:

1. In each year commencing 1 July, the employer is not required to provide access to paid time for training to more than one workplace delegate per 50 eligible employees, except where there are fewer than 100 employees at a facility and the ANMF and HWU each have one delegate, the employer will allow two (2) delegates (one from each union) to attend training in each year.
2. The number of eligible employees will be determined on the day a delegate requests paid time to attend training, as the number of eligible employees who are:
   1. full-time or part-time employees; or
   2. regular casual employees.

1. Payment for a day of paid time during normal working hours is payment of the amount the workplace delegate would have been paid for the hours the workplace delegate would have been rostered or required to work on that day if the delegate had not been absent from work to attend the training.

1. The workplace delegate must give the employer not less than 4 weeks' notice (unless the employer and delegate agree to a shorter period of notice) of the dates, subject matter, the daily start and finish times of the training, and the name of the training provider.
2. If requested by the employer, the workplace delegate must provide the employer with an outline of the training content.
3. The employer must advise the workplace delegate not less than 2 weeks from the day on which the training is scheduled to commence, whether their access to paid time to attend the training has been approved. Such approval must not be unreasonably withheld.
4. The workplace delegate must, within 7 days after the day on which the training ends, provide the employer with evidence that would satisfy a reasonable person of their attendance at the training.

[7] Cobden confirmed its approval, and my Chambers did not receive any opposition from the Unions.

[8] There are two underpinning awards, the Nurses Award 2020 and the Aged Care Award 2010 (collectively the Awards). The delegates' rights terms are at clauses 28A and 7A respectively. I am satisfied they are more favourable than clause 62 of the Agreement. There is no material difference between those two clauses of the Awards. In those circumstances, one is not more favourable than the other and I have chosen to insert clause 28A of the Nurses Award 2020.

[9] Section 218A(1) allows the Commission to "vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I am satisfied the deficiencies arising out of clause 62 of the Agreement are an obvious, unforeseeable defect and I therefore have power to amend the Agreement by replacing the subclause headed 'Entitlement to reasonable access to training', being clause 28A.8, inserted into the Agreement with the following text:

62.8 Entitlement to reasonable access to training

The employer must provide a workplace delegate with access to up to 5 days of paid time during normal working hours for initial training and at least 2 days each subsequent year, to attend training related to representation of the industrial interests of eligible employees, or to attend trade union conferences and courses, subject to the following conditions:

1. In each year commencing 1 July, the employer is not required to provide access to paid time for training to more than one workplace delegate per 50 eligible employees, except where there are fewer than 100 employees at a facility and the ANMF and HWU each have one delegate, the employer will allow two (2) delegates (one from each union) to attend training in each year.
2. The number of eligible employees will be determined on the day a delegate requests paid time to attend training, as the number of eligible employees who are:
   1. full-time or part-time employees; or
   2. regular casual employees.
3. Payment for a day of paid time during normal working hours is payment of the amount the workplace delegate would have been paid for the hours the workplace delegate would have been rostered or required to work on that day if the delegate had not been absent from work to attend the training.
4. The workplace delegate must give the employer not less than 4 weeks' notice (unless the employer and delegate agree to a shorter period of notice) of the dates, subject matter, the daily start and finish times of the training, and the name of the training provider.

1. If requested by the employer, the workplace delegate must provide the employer with an outline of the training content.

[10] The variation pursuant to s 218A will operate from 20 February 2026.

[11] The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

[12] Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

[13] The ANMF and HSU being bargaining representatives for the Agreement have given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisations under section 201(2) of the Act.

[14] The Agreement is approved today 20 February 2026. It will operate from 27 February 2026 as required by section 54 of the Act. The nominal expiry date is 30 June 2028.

[1] [2025] FCAFC 187.

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