Fair Work Commission|2025-08-28

Australian Nursing and Midwifery Federation [2025] FWC 2507 (28 August 2025)

s.234 - Application for an intractable bargaining declaration

Application for an intractable bargaining declaration in relation to the Healthscope NSW Nurses and Midwives Enterprise Agreement 2024

[1] The Australian Nursing and Midwifery Federation (ANMF) has made an application to the Fair Work Commission (Commission) under s.234 of the Fair Work Act 2009 (Cth) (Act) for an intractable bargaining declaration.

[2] The ANMF has been engaged in bargaining with Healthscope Operations Pty Ltd (Healthscope) and other bargaining representatives for an enterprise agreement to be known as the Healthscope NSW Nurses and Midwives Enterprise Agreement 2024 (Proposed Agreement). The Proposed Agreement is proposed to cover employees covered by the Healthscope - NSWMA/ANMF - NSW Nurses' and Midwives' - Enterprise Agreement 2020-2024 (Current Agreement). In addition to the ANMF and Healthscope, there are two individual bargaining representatives for the Proposed Agreement.

[3] Healthscope operates private hospitals across all Australian states and territories and employs more than 19,000 employees. The Current Agreement covers more than 4,000 employees across 12 private hospitals in New South Wales.

[4] On 18 April 2024 Healthscope made an application for the Commission to deal with a bargaining dispute pursuant to s.240 of the Act. On 26 April 2024 the Commission issued a Statement and Recommendation to assist the parties in commencing negotiations and planning for bargaining. In giving effect to the Statement and Recommendation the parties participated in monthly report backs to the Commission up until 9 July 2024.

[5] The parties then participated in substantive conferences before the Commission on:

14 August 2024;
21 August 2024;
9 September 2024;
26 September 2024;
10 October 2024; and
17 October 2024

aimed at narrowing the differences between the parties via bargaining negotiations.

[6] Between the period 30 October 2024 to 4 April 2025, members of the ANMF engaged in various forms of protected action across Healthscope's NSW hospitals, which included stoppages of work of 24-hours duration. The protected action also included various partial work bans, which led to Healthscope issuing notices to affected ANMF members of its intention to reduce their pay under s.471 of the Fair Work Act 2009 (Cth) (FW Act). The ANMF applied to the Commission in December 2024 for orders varying the notices issued by Healthscope. On 20 February 2025, the Commission issued an order suspending planned protected industrial action at its Newcastle Private Hospital pursuant to s.424 of the FW Act because it would threaten to endanger the personal safety or health or the welfare of part of the population.

[7] In recent times, Healthscope has encountered some challenges, which have been widely publicised, and on 26 May 2025 Healthscope made a public announcement that its parent entities had entered receivership.

[8] Conferences before the Commission paused until 11 April 2025 when the parties were ready to recommence bargaining with the Commission's assistance. At this time, the ANMF gave an assurance to Healthscope that its members would not engage in protected action while the bargaining meetings resumed.

[9] Conferences before the Commission were then held on the following dates:

8 May 2025;
22 May 2025;
5 June 2025;
19 June 2025; and
3 July 2025.

[10] During these conferences the ANMF presented a narrower log of claims, and the parties have been able to reach agreement about most matters, including wages.

[11] However, there is a key issue currently standing in the way of the achievement of an agreement that can be endorsed by both parties concerning annual leave in respect of full time employees. The Commission issued a Statement about this on 30 July 2025.[1]

'Applications for intractable bargaining declarations

(1) A bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the FWC for a declaration (an intractable bargaining declaration) under section 235 in relation to the agreement.

Note: The consequence of an intractable bargaining declaration being made in relation to the agreement is that the FWC may, in certain circumstances, make an intractable bargaining workplace determination under section 269 in relation to the agreement.

(2) An application for an intractable bargaining declaration must not be made in relation to a proposed multi - enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement'.

'When the FWC may make an intractable bargaining declaration

(1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:

(a) an application for the declaration has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2); and

(c) it is after the end of the minimum bargaining period (see subsection (5)).

Matters of which the FWC must be satisfied before making an intractable bargaining declaration

(a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC's processes to deal with the dispute; and

(b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

(c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

(a) the date it is made; and

(b) the proposed enterprise agreement to which it relates; and

(c) any other matter prescribed by the procedural rules.

(a) comes into operation on the day it is made; and

(b) ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

(5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

(a) if one or more enterprise agreements (the existing agreements ) apply to

any of the employees that will be covered by the proposed agreement--the later of the following:

(i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

(ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or

(b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).

(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:

(a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement--the day that the authorisation first comes into operation; or

(b) otherwise--the notification time for the proposed agreement'.

(1) The FWC may, if it considers it appropriate to do so, specify in the declaration a period (the post - declaration negotiating period) that:

(i) the day specified by the FWC in the declaration; or

(ii) any later day determined under subsection (2).

Note: The FWC cannot make an intractable bargaining workplace determination during any post - declaration negotiating period (see section 269) but may still provide other assistance during the period, such as conciliation.

(2) The FWC may, if it considers it appropriate to do so and taking into account any views of the bargaining representatives, extend the period referred to in subsection (1) by determining a later day for the purposes of subparagraph (1)(b)(ii).

[15] The parties consented to the application being determined 'on the papers' and filed materials in accordance with directions issued on 5 August 2025.

[16] It is not in contest, and I find that the ANMF is a bargaining representative for the Proposed Agreement and has standing to make the application (s.234(1)).

[17] The Proposed Agreement is a single enterprise agreement and the circumstances in s.234(2) do not apply to this application.

[18] The notification time for the Proposed Agreement was 5 March 2024, being the date on which the Respondent wrote to the Applicant to advise that it intended to commence bargaining for the Proposed Agreement. The Current Agreement reached its nominal expiry date on 30 June 2024. The end of the minimum bargaining period is the later of these two dates. The end of the minimum bargaining period was therefore 30 March 2025, being nine months after the nominal expiry date of the Current Agreement.

[19] It is not in contest, and I find that the minimum bargaining period has passed (ss.235(1)(c) and 235(5)).

Applicant's participation in s.240 dispute dealt with by the Commission

[20] It is not in contest, and I find that the Commission has dealt with the dispute about the Proposed Agreement under s.240 and the ANMF participated in the Commission's processes to deal with the dispute (s.235(2)(a)).

Section 235(2)(b) - Are there no reasonable prospects of agreement being reached if the Commission does not make the declaration?

[21] The parties have been negotiating for the proposed Agreement since May 2024 and numerous bargaining meetings have been held (including conferences as part of the s.240 process).

[22] In support of its position that there is no reasonable prospect of agreement being reached if the Commission does not make the intractable bargaining declaration, the ANMF submitted, by way of summary:[2]

Despite multiple requests from the ANMF, Healthscope has refused to put the Proposed Agreement to a vote.

• Healthscope stated in a memorandum dated 11 July 2025[3] that it will not put the Agreement to an employee vote in circumstances where the ANMF is likely to oppose the Proposed Agreement by recommending to its members that they vote 'No' to reject the Proposed Agreement.

If Healthscope was to put the Proposed Agreement to a vote, the ANMF has no intention of recommending to its members that they vote 'Yes' to approve the Proposed Agreement.
While it is understandable that an employer may wish to seek the approval of a union before proceeding to an employee vote, the refusal of the ANMF to provide advance undertakings as to its support for the Proposed Agreement does not remove the ability of the Respondent to test the views of its employees by asking them to vote on the Proposed agreement.
The ANMF's position in relation to the Proposed Agreement is because Healthscope is pursuing changes, which the ANMF considers to be substantial, to annual leave accrual for full time employees in the Proposed Agreement which the ANMF submitted would deprive most, if not all, full time employees who work on seven-day rosters the ability to accrue six weeks of annual leave based on their current entitlement in clause 25(i)(a) of the Current Agreement.
In correspondence on 10 June 2025 the ANMF outlined that it would support the Proposed Agreement in circumstances where agreement was reached on the proposed pay increases and back pay as well as the removal of changes to annual leave accrual for full time employees.
Agreement between the parties was reached on pay increases and back pay to 1 July 2024 and the issues in dispute between the parties have narrowed to annual leave accrual for full time employees and eligibility for back pay of former employees.
Healthscope has sought to undertake a full redraft of the Proposed Agreement, the ANMF has provided two full responses to the draft in October 2024 and June 2025, however Healthscope has not provided an updated draft of the Proposed Agreement since October 2024.
The draft of the Proposed Agreement does not currently contain any provisions dealing with accrual and payment of annual leave for full-time employees, nor updated wage and allowances schedules.
In circumstances where Healthscope has maintained its refusal to put the Proposed Agreement to a vote and has not provided the Applicant with a complete draft of the Proposed Agreement, or substantive responses to the ANMF's proposed changes to the Proposed Agreement, the ANMF considers there is no reasonable prospect of an agreement being reached with Healthscope.

[23] The ANMF has submitted that there are two issues on which the parties are apart. The first of these relates to the accrual of annual leave for full-time employees which has been the subject of discussions between the parties at conferences before the Commission (Annual Leave Issue). The Annual Leave Issue which is explained in detail in the Commission's Statement of 30 July 2025 (Statement).[4] In particular, and as explained in that Statement, the ANMF is seeking to retain the wording in clause 25(i) of the Current Agreement whereas Healthscope have proposed an alternative clause.

[24] The ANMF submitted that there is a second issue relating to eligibility for back pay of former employees of Healthscope (Backpay Issue) with:

the ANMF of the view that both current and former employees of Healthscope should be entitled to back payment on the first and second increases to pay and allowances under the Proposed Agreement on 1 July 2024 and 1 July 2025, so long as they were employed by Healthscope on or after 1 July 2024;

• Healthscope of the view that back pay should only apply to employees employed by Healthscope on the day the Proposed Agreement comes into operation.[5]

[25] The ANMF submitted that it does not intend to change its position in relation to those issues and Healthscope does not appear to evince any intention to depart from its position in relation to those issues.[6]

[26] Healthscope submitted that the key issue that remains in dispute between the parties is the Annual Leave Issue.[7] Healthscope submitted that more full time employees would be entitled to six weeks of annual leave under its proposal, putting it at odds with the ANMF on the effect of its proposed clause.[8] In an email sent to the Commission on 13 August 2025 Healthscope further indicated that it had no recollection of the Backpay Issue being raised in bargaining.

[27] Clause 25(i) of the Current Agreement was the subject of a dispute before the Commission which was recently determined by Commissioner Sloan.[9] Healthscope submitted that the parties are still in discussions about the proper construction and effect of that decision and if the ANMF's reading of it is incorrect, this would likely impact whether the ANMF still presses to maintain the annual leave clause in the Current Agreement.

[28] On this basis Healthscope submitted that it does not agree with the ANMF that there is no reasonable prospect of agreement being reached between the parties in the absence of a declaration being made.[10]

[29] Healthscope also submitted that while the parties have been in negotiations for the Proposed Agreement for an extended period, discussions in relation to the Annual Leave Issue only commenced in late May 2025 as the parties had agreed to discuss this issue at the end of the bargain or following the handing down of a decision by the Commission.[11]

[30] Section 235(2)(b) requires the Commission to make an evaluative judgment as to whether there is 'no reasonable prospect of agreement being reached' if an intractable bargaining declaration is not made.[12] As noted by the Full Bench in United Firefighters' Union of Australia v Fire Rescue Victoria 'no reasonable prospect' is not the same as 'no prospect' in that it does not require a certain and concluded determination that an agreement cannot be reached if a declaration is not made but rather, requires an evaluative judgment that it is rationally improbable that an agreement will be reached.[13]

[31] It is apparent that the key issue about which the parties remain apart is the Annual Leave Issue. The annual leave entitlements of full time employees under the Current Agreement has been the subject of disputation between the parties who have held competing views about the proper construction of the provisions of the Current Agreement. As noted above the dispute was determined by the Commission in a decision handed down on 1 July 2025.[14]

[32] Healthscope has proposed a clause in the Proposed Agreement which would have the following features:

A definition of a "7 Day Shiftworker" being a full time employee who is regularly rostered for duty over seven (7) days of the week Monday - Sunday and whose ordinary hours of work regularly include weekends.
A further articulation of when an employee would meet this description, i.e. because they:
- are available to work, and work, ordinary hours on all seven days of the week (Monday to Sunday) at least once per year; and
- work ordinary hours on at least five of the seven days of the week at least 24 time per year; and
- work ordinary hours on at least 24 weekends (Saturday and/or Sunday) per year; and
- work ordinary hours on at least six public holidays per year.
A qualification that an employee cannot be considered a 7 Day Shiftworker if they do not make themselves available to work on each of the seven days of the week or are employed in a role that does not require them to work ordinary hours on all seven days of the week.
A process which involves:
- Granting existing employees who meet the criteria of a 7 Day Shiftworker described above in the 12 month period prior to the agreement's commencement two weeks annual leave on the agreement's commencement.
- Following the agreement's commencement, determining whether an employee meets the 7 Day Shiftworker definition at the employee's anniversary of commencement in respect of the preceding 12 months.

[33] The ANMF would prefer to retain the wording of the clause in the Current Agreement that was the subject of the dispute determined by the Commission.

[34] As noted by Healthscope in its submissions, the Annual Leave Issue was held over for discussion until the end of bargaining or when the Commission handed down its decision in relation to the annual leave dispute. As such, the parties engaged in negotiations across the final two conferences facilitated by the Commission in an attempt to find a resolution.

[35] While Healthscope suggests that the parties are still in discussions about the proper construction and effect of the Commission's decision in the annual leave dispute, it appears that it contemplates the ANMF may form a view that its reading of that decision is incorrect and this would likely impact whether the ANMF still presses to maintain the annual leave clause in the Current Agreement. However, it is clear that the Annual Leave Issue is important to both parties and as noted by the ANMF, there is no indication that either party will change its position. Despite the Annual Leave Issue being discussed in detail across two conferences convened by the Commission there was no agreed outcome, and the parties are at an impasse in relation to this issue.

[36] In these circumstances I find that there is no reasonable prospect of agreement being reached if an intractable bargaining declaration is not made.

Section 235(2)(c) - Is it reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the Proposed Agreement?

[37] In explaining why it considered it was reasonable in all the circumstances to make the declaration, the ANMF submitted, by way of summary:[15]

The Current Agreement passed its nominal expiry date on 30 June 2024 and the last increase to pay and allowances under the current agreement was 2.5% on 1 July 2023.
It has now been more than two years since the employees that will be covered by the Proposed Agreement received an increase in their pay and allowances.
In that time, Consumer Price Index rates increased by 5.2% between 30 June 2023 and 31 March 2025.
Members of the ANMF and employees of Healthscope more broadly, have given feedback that they consider negotiations to have gone on long enough and are anxious to ensure that negotiated improvements to pay and conditions are passed on by Healthscope as soon as practicable. However, they are unwilling to accept a substantial cut to annual leave accrual.
The desire of members of the ANMF to bring an end to negotiations has become more acute since Healthscope's parent companies entered receivership in May 2025 followed by the coordination of a sale process and exploration of other changes.
In all scenarios, if the Commission was to make an intractable bargaining declaration, the impasse between the parties in bargaining will be broken and a concrete move toward securing the long-awaited pay and entitlements of employees through the making of an intractable bargaining workplace determination 'as quickly as possible' pursuant to s.269 will be welcomed by employees.

[38] Section 235(2)(c) requires the Commission to make an evaluative judgment, in relation to whether it is reasonable in all the circumstances to make the declaration sought, taking into account the views of the bargaining representatives for the agreement.[16]

[39] Directions issued on 5 August 2025 provided the bargaining representatives with the opportunity to provide their views so they can be taken into account. Only the ANMF and Healthscope filed submissions. While Healthscope did not squarely address s.235(2)(c) it is apparent that it does not consider there is no reasonable prospect of agreement being reached if an intractable bargaining declaration is not made and I have made a finding in regard to s.235(2)(b) above.

[40] In the circumstances of this matter:

the last increase to pay and allowances under the Current Agreement was in July 2023, over two years ago;
the parties have been engaged in bargaining for a lengthy period, including via a large number of conferences facilitated by the Commission;
the parties have been able to significantly narrow the issues about which they remain apart however the key issue that remains unresolved between the parties appears to be the Annual Leave Issue and this is an issue of significance to both parties;
even if the Back Pay Issue is a further issue of concern to the ANMF, it is not obvious that this is a matter to be solved through the Proposed Agreement itself or that it is a solution to the key issue in dispute which is standing in the way of agreement, being the Annual Leave Issue;
Healthscope has indicated that it is unlikely to proceed to put the Agreement to a vote without the endorsement of the ANMF at this point in time;
if Healthscope was to put the Agreement to an employee vote, the ANMF has said that it has no intention of recommending to its members to vote 'Yes' to approve the Agreement.

[41] Taking into account any views expressed by bargaining representatives for the Proposed Agreement, I consider it reasonable in all the circumstances to make the declaration sought.

Conclusion regarding the application for an intractable bargaining declaration

[42] The end of the minimum bargaining period has passed and consistent with the findings earlier in this decision, I am satisfied that:

the Commission has dealt with the dispute about the agreement under s.240 and the ANMF participated in the Commission processes to deal with the dispute; and
there is no reasonable prospect of agreement being reached if the Commission does not make the declaration; and
it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

[43] As noted by the Full Bench in United Firefighters' Union of Australia v Fire Rescue Victoria where the Commission is satisfied as to each of the matters referred to in paragraph (a) - (c) of s.235(1) of the Act, it retains a residual discretion as to whether an intractable bargaining declaration is actually made.[17] The Full Bench observed it is difficult to identify what discretionary matters might remain for consideration if the Commission has already satisfied itself as to the criteria in s.235(2).[18]

[44] The preconditions for the making of an intractable bargaining declaration in s.235(1) and (2) have been satisfied and in exercising the residual discretion, I have not identified any matter which would weigh against making an intractable bargaining declaration. Accordingly, I will make such a declaration.

Section 235A - Post-declaration negotiating period

[45] The ANMF submitted that the Commission should not specify a post-declaration negotiating period in the intractable bargaining declaration because:[19]

• The purpose of the post-declaration negotiating period is to '[give] the parties an opportunity to resolve, or at least narrow, their differences as to what matters will need to be arbitrated in the event a Declaration is made in order to minimise or eliminate the requirement that the Commission determine which matters need to be arbitrated as a preliminary step, noting the statutory requirement that the Commission make an intractable bargaining workplace determination as quickly as possible.[20]

Given that the parties are fixed in their positions in respect of both matters at issue, and that there does not appear to be significant disagreement between the parties as to the matters that will need to be arbitrated by the Commission, the Commission should not specify a post declaration negotiating period as such a period would not serve any useful purpose.
ANMF members are concerned to ensure there is no unnecessary delay to the finalisation of their pay and conditions, especially given both the length of the negotiating period to date and ongoing uncertainty regarding the financial situation of Healthscope.
Specification of a post declaration negotiating period would unnecessarily delay the arbitration of the matters at issue and therefore the making of a determination.

[46] Healthscope submitted that if the Commission is minded to make an intractable bargaining declaration, it should specify a post-declaration negotiating period of one month to enable the parties to further their discussions about the findings of the Commission in relation to its annual leave dispute[21] in hope that an intractable bargaining determination is not required.

[47] As noted above, in an email sent to the Commission on 13 August 2925 Healthscope further indicated that it had no recollection of the Backpay Issue being raised in bargaining and in this email submitted that if the ANMF is indeed seeking to ventilate the Backpay Issue, this supports the Commission specifying a post-declaration bargaining period of one month to give the parties time to discuss eligibility for backpay properly, which to date has not occurred.

[48] Even if the Back Pay Issue is a further issue of concern to the ANMF, it is not obvious that this is a matter to be solved through the Proposed Agreement itself or that it is a solution to the key issue in dispute which is standing in the way of agreement. That issue is the Annual Leave Issue which is clearly an issue of high importance to both parties. While a compromise was explored during the s.240 conference, the parties were unable to reach agreement, and it is apparent that both parties remain firm in their position. It is unlikely that an agreement between the parties can be reached unless the Annual Leave Issue is resolved.

[49] While there does not appear to be significant disagreement between the parties as to the matters that will need to be arbitrated by the Commission, I am conscious that upon making the declaration a Full Bench will need to be constituted, and the matter referred to that Full Bench to determine agreed terms as a part of a workplace determination. I note the ANMF's concerns that Healthscope has sought to undertake a redraft of the Proposed Agreement and that the last version of the draft Proposed Agreement was provided in October 2024 and does not include all agreed provisions. In those circumstances I consider it appropriate that there be a short post-declaration negotiating period commencing from today's date and concluding 5 September 2025 to encourage the parties to reach agreement on a draft document which includes the terms of those matters that are agreed and that they attempt to resolve any differences in wording in that respect. I consider that this could be achieved in a relatively short period with a smaller bargaining group comprised of persons who have the requisite drafting skills. If the parties require the further assistance of the Commission in respect of this task within the post-declaration negotiating period, they are encouraged to notify the Commission at the earliest opportunity. If the parties can settle the text of such a document, or at least clearly identify the specific wording that is not agreed, it will likely assist the Full Bench convened to make the determination. The brief nature of this period is unlikely to result in further delay in addition to what has already been a lengthy bargaining process.

[50] I make an intractable bargaining declaration in relation to the Healthscope NSW Nurses and Midwives Enterprise Agreement 2024. A post-declaration negotiating period will start today, 28 August 2025 and end on 5 September 2025. The declaration is made by a separate order that is published in conjunction with this decision and which, in accordance with s.235(4)(a) of the Act, will operation from the date of this decision.

[2] See ANMF response to q.3.4 in its application.

[15] ANMF response to q.3.5 in its application.

[19] ANMF Submissions at [10] - [12].

[20] ANMF Submissions at [10] with reference to United Firefighters' Union of Australia v Fire Rescue Victoria [2023] FWCFB 180 at [46].

[21] Healthscope's Submissions at [9].

Printed by authority of the Commonwealth Government Printer

Australian Nursing and Midwifery Federation [2025] FWC 2507 (28 August 2025)

At a glance

Court

Decision date

Source

Judgment (109 paragraphs)

Australian Nursing and Midwifery Federation [2025] FWC 2507 (28 August 2025)

Legislation Cited (1)