s.739 - Application to deal with a dispute

Dispute under enterprise agreement - proposal to remove longstanding paid meal break condition for affected nurses - consultation obligations - whether condition arises under enterprise agreement, contract, or policy - consultation obligations not followed - dispute resolved

[1] The Australian Nursing and Midwifery Federation (ANMF) has referred a dispute to the Commission pursuant to the dispute resolution procedure in clause 10 of the St John of God Health Care NSW Hospitals and New South Wales Nurses and Midwives' Association / ANMF - NSW Branch, Nurses Enterprise Agreement 2023 (Agreement). The dispute arose after St John of God Health Care Inc (St John of God) communicated a proposal to cease providing a paid meal break to certain nurses employed at its Richmond and Burwood Hospitals. The parties refer to the condition as a "legacy arrangement". The legacy arrangement has been received by nurses with longer periods of service for many years but has not been provided to nurses with shorter periods of employment. St John of God wants to cease the legacy arrangement for equity and fairness reasons so that all nurses have the same meal break conditions. The dispute could not be resolved via conciliation. The ANMF sought an arbitrated resolution of the dispute pursuant to clause 10(iii) of the Agreement and s.739 of the Fair Work Act 2009 (FW Act).

[2] I conducted a hearing via video on 10 March 2026. I granted permission for St John of God to be represented by a lawyer at the hearing on the basis that granting permission would enable the matter to be dealt with more efficiently. This was not opposed by the ANMF. The ANMF relied on evidence from Angela Dougherty (Registered Nurse - Richmond Hospital) and Sumon Gazi (Registered Nurse - Burwood Hospital). St John of God relied on evidence from Benjamin Juengling (Senior Employee and Industrial Relations Advisor), Catherine Keyvar (Director of Clinical Services - Richmond Hospital), and Cindy Foot (Director of Clinical Services - Burwood Hospital).

[3] The dispute has evolved to a degree since it was initially lodged with the Commission by the ANMF on 20 November 2025. St John of God has raised arguments that the Commission does not have jurisdiction to determine parts of the dispute raised by the ANMF. Issues around compliance with the status quo provision in clause 10(iv) of the Agreement have also arisen because some affected employees have accepted ex-gratia offers since the dispute was lodged. For reasons that are explained below, I do not consider it is necessary to resolve these issues in this arbitrated decision.

• [4] In Workpac Pty Ltd v Skene,[1] the Full Court of the Federal Court of Australia summarised the principles for interpreting an enterprise agreement as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation "... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J)."

[5] The history to the dispute is helpfully summarised in Mr Juengling's witness statement and the attached documents.

[6] St John of God wrote to the ANMF on 28 July 2025 to provide notice of a proposed change. The letter relevantly stated:

"Historically, a small number of caregivers at these hospitals have received a paid meal break as part of a legacy arrangement. Caregivers who are in receipt of this paid meal break are not required to perform any work or remain on call during their meal break. This arrangement does not appear in or as part of the employment contracts or the enterprise agreement that covers these caregivers and is not extended to the majority of nursing caregivers who work alongside those who receive it. In the interest of ensuring fairness, equity, and consistency across our nursing workforce, the organisation is proposing to cease this paid meal break arrangement effective from 22 September 2025."

The correspondence went on to refer to consultation about the proposed change and the offer of an ex-gratia payment to affected employees.

[7] St John of God wrote to affected employees in relation to the proposed change on 1 August 2025. The letter was generally to the same effect as what had been communicated to the ANMF on 28 July 2025.

[8] St John of God and the ANMF exchanged various emails about the proposed change from 4 August 2025 until 18 August 2025. There was also a phone call to discuss the changes.

[9] On 1 September 2025, St John of God wrote to affected employees to advise them that the consultation period had now concluded, and an outcome would be communicated by 5 September 2025.

[10] The ANMF sent an email to St John of God on 4 September 2025 to provide formal notice that the proposed change was in dispute pursuant to the dispute resolution clause of the Agreement.

[11] On 5 September 2025, St John of God sent an email to affected employees indicating that it was considering further feedback from the ANMF and this would delay an outcome being communicated to employees.

[12] On 11 September 2025, St John of God sent an email to affected employees which had a FAQ document with answers attached. The FAQ document explained why the proposed change was being made and indicated the changes would now not take effect until 3 November 2025. The FAQ document included the following content:

"3. Can the hospitals provide additional context for the circumstances surrounding the arrangement, when and why it commenced and when it was no longer offered to new caregivers?

While we have made every effort to identify the exact details pertaining to the arrangement including when it commenced, why it was offered and when it was no longer offered to new caregivers, due to this being a legacy arrangement no specific relevant documentation was located.

4. Does this arrangement appear in or form part of my employment agreement or employment contract?

We have reviewed the current and previous Enterprise Agreements, caregiver contracts, and policies, and there is no clear context or description detailing these unique paid meal break arrangements in any of these documents...

The continuation of this paid meal break arrangement isn't an option under the proposed change for the reasons outlined in question 1 above.

In some cases, caregivers will not need to alter their existing employment contract or contracted hours. This is because even after the removal of the paid meal break, the caregiver's current contracted hours can still be rostered in full to match current shift times.

Regrettably, some caregivers will experience a reduction to their contracted hours as a result of this change. This is because after the removal of the paid meal break, the caregiver's current contracted hours cannot be rostered in full to match current shift times."

[13] St John of God and the ANMF met to discuss the dispute on 18 and 25 September 2025. The meetings led to St John of God agreeing to have internal discussions about whether any enhanced ex-gratia payment could be offered.

[14] On 4 November 2025, St John of God wrote to affected employees to provide an improved ex-gratia offer and an updated FAQ document.

[15] The ANMF confirmed on 6 November 2025 that the proposed change remained in dispute.

[16] St John of God closed the consultation process on 11 November 2025.

[17] St John of God communicated to affected employees that the changes would proceed on 13 November 2025.

[18] The ANMF lodged a dispute resolution application with the Commission on 20 November 2025.

[19] Given the status quo provision in the Agreement, St John of God has not yet implemented the change for affected employees unless they have agreed to St John of God's ex-gratia offer.

RELEVANT PROVISIONS IN THE AGREEMENT - CONSULTATION

[20] Clause 9 of the Agreement contains a reasonably standard consultation term which is in similar terms to the model consultation term that appears in modern awards and the model consultation term prescribed in Schedule 2.3 of the Fair Work Regulations 2009.

[21] Clauses 9(i), (vi), and (vii) of the Agreement identify when the consultation obligations are triggered for a major change.

[22] Clauses 9(ii) and (iii) of the Agreement require St John of God to give notice of a proposed major change to the affected employees and to discuss the change with the affected employees.

[23] Clause 9(ii) of the Agreement states the ANMF's role as a representative must be recognised by St John of God if an affected employee seeks to be represented by the ANMF.

[24] To facilitate the discussions required by clause 9(iii), clause 9(iv) of the Agreement requires St John of God to:

"For the purposes of the discussion - provide, in writing, to the relevant Nurse Caregivers all relevant information about the change including the nature of the change proposed; and information about the expected effects of the change on the Nurse Caregivers; and any other matters likely to affect the Nurse Caregivers."

[25] Clause 9(vi) of the Agreement then states:

"The Employer must give prompt and genuine consideration to matters raised about the major change by the relevant Nurse Caregivers."

[26] St John of God accepts that the dispute which has arisen about compliance with the consultation terms is a dispute arising under the Agreement.

[27] Although it appears St John of God approached the consultation process in good faith and that it intended to comply with the consultation clause in the Agreement, I consider there was a fundamental problem with the consultation process.

[28] As identified above, St John of God's FAQ document which was provided to the affected employees included the following content:

"3. Can the hospitals provide additional context for the circumstances surrounding the arrangement, when and why it commenced and when it was no longer offered to new caregivers?

While we have made every effort to identify the exact details pertaining to the arrangement including when it commenced, why it was offered and when it was no longer offered to new caregivers, due to this being a legacy arrangement no specific relevant documentation was located."

[29] This statement in the FAQ document communicated to employees that St John of God had not been able to identify the legal basis for the legacy arrangement. That was consistent with the position advanced by St John of God at the hearing on 10 March 2026. It appears that St John of God has not been able to locate the original contracts of employment for many of the affected employees and has not been able to locate any other written documentation relating to the legacy arrangement. Although I note there is not a complete lack of documentary evidence because St John of God seemingly has time and pay records which confirm the legacy arrangement has been consistently applied in relation to the affected employees for many years.

• [30] Identifying the correct legal nature of the legacy arrangement is obviously critical to determining whether the entitlement can be unilaterally removed by St John of God. If the legacy arrangement is a contractual term, St John of God could not vary the term without the agreement of the employee and without consideration arising for both parties.[2] The situation would be different if the legacy condition was only a direction issued by St John of God via, for example, a policy.

[31] What I consider is missing from the FAQ document, and the other communications which occurred during the consultation process, is why St John of God decided that the lack of documentary evidence in relation to the legacy arrangement led it to form the view that it could unilaterally cease complying with the legacy arrangement. St John of God seems to have taken a position that the legacy arrangement was not contractual in nature and hence could be varied unilaterally, but there was no explanation during the consultation process about why it arrived at that position.

[32] The FAQ document suggests that St John of God formed the view that because it could not identify any documentation directed at the legacy arrangement then it automatically had the ability to unilaterally remove the condition. However, that is not necessarily the correct legal position. A lack of documentation can arise if the legacy arrangement was a contractual term, or if the legacy arrangement was in the nature of direction issued by St John of God via a policy. The lack of documentation offers no real insight into the legal nature of the condition.

[33] The problem created by St John of God's approach to the consultation process is further highlighted by the following content in the FAQ document:

The continuation of this paid meal break arrangement isn't an option under the proposed change for the reasons outlined in question 1 above.

In some cases, caregivers will not need to alter their existing employment contract or contracted hours. This is because even after the removal of the paid meal break, the caregiver's current contracted hours can still be rostered in full to match current shift times.

Regrettably, some caregivers will experience a reduction to their contracted hours as a result of this change. This is because after the removal of the paid meal break, the caregiver's current contracted hours cannot be rostered in full to match current shift times."

St John of God communicated to affected employees that there was no scope to challenge St John of God's position even though it had not actually articulated the basis for its position.

[34] There is also evidence which could suggest the legacy arrangement is a binding contractual condition. The fact that St John of God stopped offering the condition to new employees at some point in time but continued recognising the condition for existing employees is potentially consistent with the condition being contractual in nature and only being capable of variation by agreement and with consideration for both parties. If the condition was a direction issued via policy, St John of God could likely have unilaterally removed the condition for existing and new employees at the same time. The oral evidence provided by Ms Dougherty during the hearing was also to the effect that she had no idea the condition could be removed by St John of God. While Ms Dougherty's subjective understanding of the arrangement may not be overly relevant to the legal test that would need to be applied, evidence about oral conversations that formed the basis for Ms Dougherty's view may be of significant relevance given the lack of documentation. The fact that the same condition was provided consistently to several employees across both hospitals may also be an indication that it was a contractual benefit offered as a standard condition to the affected employees. These are matters that would ultimately need to be decided by a court of competent jurisdiction. However, the point is that the issue is far from clear and St John of God did not articulate the basis for their position that the legacy arrangement could be unilaterally removed during the consultation process.

[35] I consider St John of God's failure to explain why it considered the legacy arrangement could be unilaterally varied as part of the consultation process means it did not provide the affected employees "all relevant information about the change including the nature of the change proposed" as required by clause 9(iv) of the Agreement.

[36] St John of God's failure to articulate why it considered it could unilaterally remove the legacy arrangement denied the affected employees any opportunity to raise matters about the lawfulness of the major change. I consider this inevitably meant that St John of God did not comply with the requirement in clause 9(vi) to give prompt consideration to matters raised by the affected employees. St John of God effectively could not consider matters raised by employees because it denied the employees fundamental information about the nature of the change that would have been necessary to raise matters or concerns.

[37] For these reasons, I resolve the dispute by determining that St John of God did not comply with the consultation obligations in the Agreement.

[38] Aside from the issue of consultation, I am not satisfied that the dispute raised by the ANMF is directed at the terms of the Agreement. The dispute appears to turn on whether the legacy arrangement can be unilaterally removed by St John of God. Although the ANMF attempted to link the legacy arrangement with various hours of work and break conditions in the Agreement, I consider that was essentially an attempt to retrofit a dispute about the cessation of the legacy arrangement as a dispute about the terms of the Agreement. It appears clear that the condition that the affected employees are concerned about losing is a historical benefit that sits outside of the Agreement. That being the case, if a further consultation process is conducted and the dispute remains unresolved, it appears to be a dispute that would need to be pursued in a court of competent jurisdiction.

[39] I consider it is appropriate for St John of God to commence a new consultation process that deals with the concerns I have identified above. The status quo should prevail for employees that have not agreed to an ex-gratia payment while that process occurs.

[40] The situation is obviously complicated for affected employees that have agreed to the ex-gratia payment offered by St John of God. However, whether any potential issues of unfairness arise for those employees may not be clear until further consultation, and potentially legal action, occurs. The parties may be able to reach agreement about whether anything further needs to be done in relation to that cohort of employees once those processes conclude.

[41] The dispute is resolved by arbitration in accordance with this decision.

Ms R Roach from Hall & Wilcox representing St John of God.

[1] [2018] FCAFC 131; (2018) 280 IR 191 at [197].

[2] For example, see Hill v Forteng Pty Ltd [2019] FCAFC 105; (2009) 288 IR 342.

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