Application for variation of the Healthscope - WA - Enrolled Nurses & Support Service Employees - Enterprise Agreement 2023

[1] Healthscope Operations Pty Ltd has applied for approval of a variation (Variation) to the Healthscope - WA - Enrolled Nurses & Support Service Employees - Enterprise Agreement 2023 ("Agreement"). The application is made under section 210 of the Fair Work Act 2009 (Act).

[2] The effect of the Variation is to introduce into the Agreement a new salary packaging clause (Salary Packaging Clause) in anticipation of Healthscope transitioning to become a not-for-profit organisation.

[3] The Agreement covers the United Workers Union (UWU). The Commission received a Form F23B from the UWU dated 15 November 2025, stating that the UWU did not want to advise the Commission whether it supports or opposes approval of the Variation. In an email to the Commission on 15 January 2026, the UWU stated that did wish to be heard on the application.

[4] The Agreement also covers the Australian Nursing and Midwifery Federation (WA Branch) (ANMF). In a Form F23B dated 20 November 2025, the ANMF stated that it did not want to advise the Commission whether it supports or opposes approval of the Variation. However, in an annexure to the form (ANMF Annexure) the ANMF stated:

"The ANMF (WA Branch) does not support or oppose approval of the variation; however, it wishes to make the Commission aware of its concerns. The intention of this is to assist the Commission's consideration of the application."

[5] The ANMF Annexure went on to detail the ANMF's concerns with the Salary Packaging Clause and the process by which the Variation was put to the relevant employees for vote.

[6] In an email to the Commission on 16 January 2026, the ANMF stated that it did not wish to be heard on the application. It confirmed that its position remained as set out in the ANMF Annexure and stated: "To reiterate, we wished to simply inform the Commission's deliberations of our concerns. We will be guided by the Commission and remain ready to assist further should the Commission require it."

[7] I subsequently made directions requiring Healthscope to file any submissions that it wished to make regarding the ANMF Annexure. Those submissions were received on 28 January 2026.

[8] As the ANMF did not seek to be heard, I have determined the application on the papers.

[9] The context in which the application is made is not in dispute. It is convenient to reproduce the following background from Healthscope's submissions:[1]

8. Healthscope currently owns and operates a group of 33 private hospitals across Australia (and operates a further 3 private hospitals).

9. In May 2025, Healthscope's parent entities entered into receivership with about $1.6 billion owed to lenders. Its lenders appointed McGrathNicol Restructuring to undertake a process to sell the business.

13. The Proposed Variations are material to a bid made by Healthscope management as part of the sale process to restructure part or all of its operations into a for-purpose organisation, referred to as PurposeCo, and to retain ownership of some or all of the Healthscope hospitals through the sale process.

14. The Healthscope 'PurposeCo' management bid has been proposed to employees on the basis that it would be a shared benefit arrangement between employees and PurposeCo. Specifically, PurposeCo would initially retain most of the tax savings associated with salary packaging (up to 90% of those savings), with the remaining benefit being paid to the employee. ...

15. ...Healthscope is currently in receivership, with debts of $1.6 billion as at May 2025. By transitioning some Healthscope hospitals into a not-for-profit model, PurposeCo would operate primarily for the benefit of its patients and employees. However, in order to successfully bid for some or all of the remaining Healthscope hospitals, the lenders must be satisfied that the PurposeCo model can service its debt obligations and remain financially viable into the future. The FBT savings will be an important source of funding in the early stages of the PurposeCo model."

[10] Section 211(1) of the Act is in these terms:

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

[11] The ANMF did not contend that the requirements of section 211(1)(a) and (b) had not been met, or that there are serious public interest grounds for not approving the variation. Its position on the application was neutral. It stated in the ANMF Annexure:

"The ANMF (WA Branch) maintains its concerns in respect of Healthscope's application outlined above; however, it also recognises that the proposed variation has been voted on and endorsed by the employees directly affected by the variation - i.e. the ANMF (WA Branch)'s members - and the related business issues their employer faces.

It follows that the ANMF (WA Branch) does not seek to formally oppose the variation, but to simply inform the Commission's deliberations of its concerns. The ANMF (WA Branch) accepts that the Commission it is then open to the Commission to inform itself using its powers as it sees fit should it opt to do so, or otherwise proceed to determine the application based on the materials before it." (Reproduced verbatim)

[12] In circumstances where the ANMF neither supports nor opposes approval of the Variation, I do not propose to traverse the matters raised in the ANMF Annexure. Suffice it to say, I have carefully considered them, as I have Healthscope's submissions. I do not consider that further enquiries by the Commission are required. I am persuaded by Healthscope's submissions, and on the material that it filed in support of the application, that nothing raised in the ANMF Annexure precludes approval of the Variation under section 211(1) of the Act.

[13] Voting for the Variation took place from 20 to 27 October 2025. Of the 113 employees affected by the Variation, 67 cast a valid vote and 54 voted to approve the Variation.

[14] The Form F23AB declaration that Healthscope filed with the application stated that 53 of the affected employees were casuals. Given the total number of employees who voted, I requested that Healthscope provide further evidence to demonstrate that any casual employees who voted for the Variation were entitled to do so. Healthscope filed submissions and evidence in response to that request on 30 January 2026.

[15] I accept Healthscope's evidence and submissions on the issue. I am satisfied that the vote was conducted validly and that the majority of eligible employees voted in favour of the Variation.

[16] Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of sections 210 and 211 as are relevant to this application for approval of the Variation have been met.

[17] The Variation is approved. The Variation takes effect from the date of this decision.

[18] The consolidated version of the Agreement, as varied, is attached to this decision.

[1] Healthscope's Outline of Submissions, 28 January 2026

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