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Fair Work Act 2009

s.240 - Bargaining dispute

Healthscope Operations Pty Limited Trading AS Healthscope

• [1] On 18 April 2024, Healthscope Operations Pty Limited (Healthscope) made an application for the Fair Work Commission (Commission) to deal with a bargaining dispute.

• [2] Healthscope operates private hospitals across all Australian states and territories and employs more than 19,000 employees.

• [3] Healthscope and the Australian Nursing and Midwifery Federation (ANMF) and other bargaining representatives have been engaged in negotiations for an enterprise agreement with regard to employees covered by the Healthscope - NSWMA/ANMF - NSW Nurses' and Midwives' - Enterprise Agreement 2020-2024 (Current Agreement) since May 2024.

• [4] The Current Agreement covers more than 4,000 employees across 12 private hospitals in New South Wales.

• [5] On 26 April 2024 the Commission issued a Statement and Recommendation (April Statement) 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.

• [6] During those report backs both parties expressed some dissatisfaction regarding the conduct of the other party. Notwithstanding their differences, both parties expressed a desire to bargain in good faith toward an Agreement and the Commission's assistance was offered to the parties to ensure bargaining proceeded constructively.

• [7] The parties participated constructively in substantive conferences before the Commission on 14 August 2024, 21 August 2024, 19 September 2024, 26 September 2024, 10 October 2024, and 17 October 2024 aimed at narrowing the differences between the parties via bargaining negotiations.

• [8] 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. The parties are awaiting a decision from the Commission on the ANMF's application. 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.

• [9] 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.

• [10] 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.

• [11] Conferences were held on 8 May 2025, 22 May 2025, 5 June 2025, 19 June 2025 and 3 July 2025. 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. I observe the relationship between the parties has improved considerably since the commencement of the application and the parties have made significant progress in bargaining.

• [12] However, there is a single issue that is now preventing the achievement of an agreement that can be endorsed by both parties concerning annual leave in respect of shiftworkers.

• [13] The issue 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.

• [14] In particular, clause 25(i) of the Current Agreement provides:

"Annual leave will accrue on a pro rata basis and be credited to the employee progressively in accordance with the provisions of the NES contained in the FW Act.

(a) Employees required to work on a seven (7) day basis - six (6) weeks annual leave per annum.

(b) All other employees - four (4) weeks annual leave per annum".

• [15] The dispute was determined by Commissioner Sloan in a decision handed down on 1 July 2025,[1] and dealt with the meaning of the phrase "required to work on a seven (7) day basis".

• • Found that "Support for the use of "required" being used in the sense of obliging the employee to have worked on a particular basis can also be found in the historical context of the Agreement",[2] considered the Private Hospital Employees (State) Award and Annual Holidays Act and said:

"[28] The effect of the Private Hospital Employees (State) Award, when read with the Annual Holidays Act, was that an employee's "base" entitlement to annual leave was four weeks per annum. Any additional annual leave was subject to a requirement that the employee have worked their ordinary hours on Sundays and/or public holidays. To the extent that clause 16 of the Private Hospital Employees (State) Award was the genesis of clause 25(i) of the Agreement, it is consistent with the latter calling for a similar requirement".

• • Found that the leave entitlement will be determined by whether the engagement pattern requires the employee to work on a seven day basis and that it is not possible to determine from the employee's contract what their annual leave entitlement will be.[3]

• • A full-time shift worker who is required to work on a seven day basis would be entitled to accrue annual leave at the rate of six weeks per annum under clause 25(i)(a).[4]

• • Said "it would not be a sensible industrial outcome that such additional annual leave would be available to an employee who may never be required to work on a Sunday or public holiday."[5]

• • Clause 25(i)(a) sets a rate at which annual leave will accrue and be credited to the employee progressively, depending on the basis on which they work and does not mandate that an employee must receive either six weeks of annual leave or four weeks of annual leave at the end of each year.[6] Rather the accrual may be something in the middle such that when an employee works on a seven day basis, leave will accrue pro rata at a rate assuming an annual entitlement to six weeks leave. If the basis on which they work changes, such that they no longer work on a seven day basis, they will accrue annual leave at a rate assuming a four week annual entitlement.[7]

• • The Hours of Work Term in employee contracts reposes significant discretion in Healthscope but does not render an employee as being one who is required to work on a seven day basis as that will only be the case when the employee is called upon by Healthscope to in fact work on a seven day basis.[8]

• • Said he saw "no warrant for imposing a requirement that an employee work a particular number of Sunday or public holidays before they can be regarded as working "on a seven day basis"".[9]

• • Found that clause 25(i) does not call for a binary outcome at the end of each year of an employee's service and that nothing in the language of the clause precludes leave accruing at different rates, depending on the "basis" of the employee's work from time to time.[10]

• • Accepted that such an outcome may cause some administrative inconvenience to Healthscope but that the inconvenience may, at least in some cases, be the consequence of Healthscope availing itself of the flexibility afforded by the Hours of Work Term in employee contracts.[11]

• [17] Healthscope has proposed an alternative clause 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
  • works ordinary hours on at least five of the seven days of the week at least 24 time per year; and
  • works ordinary hours on at least 24 weekends (Saturday and/or Sunday) per year; and
  • works 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.

• [18] The ANMF would prefer to retain the wording of the clause in the Current Agreement that was the subject of the dispute before Commissioner Sloan.

• [19] While the parties engaged in negotiations across two conferences in an attempt to find a resolution and both parties were open to compromise, two key sticking points emerged, being the requirement for an employee to work ordinary hours on at least five of the seven days of the week at least 24 times per year in order to meet the 7 Day Shiftworker definition, and the requirement for an employee to work ordinary hours on at least 24 weekends (Saturday and/or Sunday) per year. The ANMF is concerned that employees who may be entitled to accrue annual leave at the rate of six weeks per annum under the construction of the Current Agreement as determined by Commissioner Sloan may no longer be able to accrue annual leave beyond a four week entitlement if they are required to meet the 7 Day Shift Worker definition proposed by Healthscope.

• [20] I consider that the parties have reached an impasse concerning these final sticking points having explored a resolution across two conferences without an agreed outcome.

• [21] 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 out of a reasonable concern that the Agreement may not be supported if it takes this step. 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.

• have been bargaining for at least 9 months and appear to have reached an impasse; and
• have already tried to resolve the bargaining dispute by making an application pursuant to s.240 of the Fair Work Act 2009 (Cth).

• [23] In the parties' circumstances it may be open to them to apply for an intractable bargaining declaration. If the Commission makes such a declaration and the bargaining representatives are still unable to resolve the dispute, the Commission would then be required to make an intractable bargaining workplace determination in which the Commission will make a decision about the matters in the dispute which will be binding on the parties.

The parties will now need to consider their next steps, being mindful that under an agreed outcome the parties will have control over that outcome and will know with certainty what that outcome will be whereas under a workplace determination the Commission will come to its own conclusion based on the submissions and evidence of the parties in a contested setting.

[1] [2025] FWC 1864.

[2] [2025] FWC 1864 at [24].

[3] [2025] FWC 1864 at [32].

[4] [2025] FWC 1864 at [34].

[5] [2025] FWC 1864 at [47].

[6] [2025] FWC 1864 at [78].

[7] [2025] FWC 1864 at [78] - [79].

[8] [2025] FWC 1864 at [81].

[9] [2025] FWC 1864 at [83].

[10] [2025] FWC 1864 at [83].

[11] [2025] FWC 1864 at [84].

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