Compass Group Healthcare Hospitality Services Pty Ltd [2025] FWCA 2956 | Case summary

[1] An application has been made for approval of a single enterprise agreement known as the Compass Group (Medirest - Thomas Embling Hospital) Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Compass Healthcare Hospitality Services Pty Ltd (employer).

[2] The Health Services Union (Victoria No. 2 Branch) (HACSU), being a bargaining representative for the agreement, has given notice under s.183 that it wants the Agreement to cover HACSU. In accordance with s.201(2) I therefore note that the Agreement covers HACSU. By way of declaration in form F18, HACSU has supported the approval of the Agreement.

[3] Prior to approving the agreement, it was necessary to make some further enquiries of the parties relating to following matters:

(a) There appeared to be a number of obvious typographical errors in cross referencing terms in the Agreement;

(b) The definition of shiftworker provided in the Agreement did not align with the definition in the Award, such that it appeared that some shiftworkers as defined in the Award might not benefit from the additional week of annual leave provided by the NES;

(c) The intended operation of clause 40.7 required clarification, as it seemed contrary to section 326 of the Act insofar as it authorised a deduction of all wages for all work performed in a notice period in circumstances where an employee is absent for any part of that notice period;

(d) The interaction of the Agreement's casual conversion provisions (clauses 19.5-19.9) with the NES, particularly in light of the lack of regulation of the employer's permissible reasons for rejecting a request for conversion to permanent employment;

(e) Whether employees at all classifications would be better off overall when working reasonably foreseeable shifts that attracted shift penalties pursuant to clause 47 of the Agreement, relative to their entitlements under clause 26.3 of the Award;

(f) Whether a shiftworker within the meaning of the modern award would be better off overall if they took annual leave for any period, having regard to the different basis for calculating leave loading in clause 49.2 and 49.3 of the Agreement compared to clause 27.3 of the Award.

[4] In correspondence with chambers and in a brief conference on 22 August 2025, the following resolutions were reached in respect of these issues:

(a) There were indeed a number of cross-referencing errors, which were obvious in context and easily corrected. It was accepted by the parties that a variation pursuant to section 218A would be an appropriate way of remedying these.

(b) An undertaking by the employer, the terms of which were agreed, was an appropriate response to the concerns regarding the definition of shiftworker.

(c) Discussion of the concern regarding clause 40.7, whilst not an approval requirement per se, revealed that the clause (and its predecessor in the current agreement) were missing the word "not". The clause had hitherto been understood and applied as if it only authorised deductions in respect of work not done (rather than work done) during a notice period. It was not controversial that a slip of this nature could, and should, be addressed by of a variation pursuant to section 218A.

(d) An undertaking by the employer, the terms of which were agreed, was an appropriate response to the concerns regarding the interaction of the Agreement's casual conversion provisions with the NES.

(e) An undertaking by the employer, the terms of which were agreed, was an appropriate response to the concerns regarding ensuring employees at all classifications would be better off overall when working reasonably foreseeable shifts that attracted shift penalties.

(f) An undertaking by the employer, the terms of which were agreed, was an appropriate response to the concerns regarding the amount of payment that was received by different categories of employees when taking annual leave.

[5] Subject to the undertakings referred to above and having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met. The undertaking is taken to be a term of the Agreement, and is provided at Annexure A of this decision. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 September 2025. The nominal expiry date of the agreement is 31 October 2028.

[7] As noted above, I have decided to vary the Agreement pursuant to section 218A. There is no doubt that there is a capacity to vary the agreement prior to its approval and in conjunction with the approval decision.[1] The variations that I order are as follows:

(a) Clause 18.1 of the Agreement will be varied to replace the cross reference to "Clause 34 - HOURS" with a cross reference to "Clause 40 - HOURS";

(b) Clause 18.1 of the Agreement will be varied to replace both cross references to "Clause 36 - HOURS" with cross references to "Clause 40 - HOURS";

(c) Clause 19.2 of the Agreement will be varied to replace the cross reference to "clause 45 - SATURDAY AND SUNDAY WORK" with a cross reference to "clause 48 - SATURDAY AND SUNDAY WORK";

(d) Clause 19.2 of the Agreement will be varied to replace the cross reference to "clause 52 - PUBLIC HOLIDAYS" with a cross reference to "clause 55 - PUBLIC HOLIDAYS";

(e) Clause 19.4 will be varied to replace the cross reference to "Clause 46 - ANNUAL LEAVE" with a cross reference to "Clause 49 - ANNUAL LEAVE";

(f) Clause 40.7 will be varied to insert the word "not" between the words "work" and "done" on the second last line;

(g) Clause 59.2.3 will be varied to replace the cross reference to clause "56.2" with a cross reference to clause "59.2";

(h) Clause 59.5(b) will be varied to replace the cross reference to clause "56.3" with a cross reference to clause "59.3";

(i) Clause 64.1.3 will be varied to replace the cross reference to clause "61.1.2" with a cross reference to clause "64.1.2";

(j) Clause 64.1.5 will be varied to replace both cross references to clause "61.1.4(i)" with cross references to clause "64.1.4(i)".

[1] BHP Coal Ltd [2023] FWCA 115, Buller Ski Lifts Pty Ltd [2023] FWCA 844, Gippsland NDT Services [2024] FWCA 3838.

Compass Group Healthcare Hospitality Services Pty Ltd [2025] FWCA 2956 (2 September 2025)

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Judgment (12 paragraphs)

Compass Group Healthcare Hospitality Services Pty Ltd [2025] FWCA 2956 (2 September 2025)

Legislation Cited (1)