[2026] FWCA 719

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

South Coast Medical Service Aboriginal Corporation

SOUTH COAST MEDICAL SERVICE ABORIGINAL CORPORATION ENTERPRISE AGREEMENT 2026-2029

Application for approval of the South Coast Medical Service Aboriginal Corporation Enterprise Agreement 2026-2029

[1] South Coast Medical Service Aboriginal Corporation (SCMSAC) has applied for approval of a single enterprise agreement known as the South Coast Medical Service Aboriginal Corporation Enterprise Agreement 2026-2029 (Agreement). The application is made under section 185 of the Fair Work Act 2009 (Act).

[2] The Health Services Union (HSU) was a bargaining representative for the Agreement.

[3] On 13 March 2026, I arranged for an email to be sent to SCMSAC and the HSU, which stated:

This application has been allocated to Commissioner Sloan.

Clause 11 of the Agreement does not include the changes to the corresponding Award provisions resulting from the decision of the Full Court of the Federal Court in Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187 and of the Full Bench of the Commission in Decision [2026] FWCFB 5. To that extent it is arguably less favourable than the Award provisions. While this may not itself be a barrier to approval of the Agreement, it raises the question as to whether section 205A of the Fair Work Act 2009 applies. If so, clause 11 would be of no effect and the most favourable term in the applicable Awards (perhaps the Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020) would be taken to be a term of the Agreement.

The Commissioner invites the parties' submissions on this question.

In its Form F18, the Health Services Union states that it does not wish to inform the Commission whether it supports or opposes approval of the Agreement, but wants to inform the Commission of four "pending concerns". It further states that it considers that the Agreement passes the BOOT, but notes the same four "pending concerns".

1. The absence of an express commitment in the Agreement that pay increases will operate from 1 January 2026.

2. The request for a "clearer provision" that employees' wages will not fall below Award rates during the term of the Agreement.

3. The absence of a "parties to the agreement" clause.

4. The Time off in Lieu provision of the Agreement being less favourable than the Award provisions.

It is not entirely clear to the Commissioner whether the HSU contends that these concerns have the effect that the Agreement does not pass the BOOT. If so, the Commissioner makes the following observations:

A. The HSU has not explained how concern 1 would result in the employees not being better off overall. In any event, the material on which SCMSAC relies in support of the Application includes an email from Alison Carter to the employees of 6 February 2026 which states that "SCMSAC will apply the new pay rates from 1 January 2026". That email appears to have been sent prior to and in anticipation of the employees voting on the Agreement.

B. Concern 2 appears to be addressed in clause 17.11 of the Agreement.

C. The Commissioner fails to see how concern 3 gives rise to a BOOT concern. He is aware that the HSU wants the Agreement to cover it, and that will be noted in any decision as required by section 201(2) of the Act.

D. The HSU has not explained how concern 4 would result in the employees not being better off overall. He notes the information provided by SCMSAC at item 12 of its Form F17B.

If the HSU does not contend that the concerns result in the Agreement failing to pass the BOOT, the Commissioner is unclear how they would preclude approval of the Agreement."

[4] The email went on to invite the parties' response on these matters.

[5] To provide context to some of the matters raised in the email, I note the following:

• (1) Clause 17.11 of the Agreement provides:

"Notwithstanding anything else in this Agreement, employees will not be paid less than they would be paid under an Applicable Award, inclusive of relevant allowances and the value of additional payments required by any relevant Equal Remuneration Order."

(2) At item 12 of its Form F17B declaration, stated:

"Under the Nurses Award, [Time in Lieu] accrues based on the overtime rate instead of overtime hours worked.

NOTE: In practice, the affected employees very rarely engage in activities where overtime may accrue TIL." (Italics in original)

(3) At items 10 and 11 of the Form F17B, SCMSAC listed a number of entitlements in the Agreement which were either more beneficial than those in the relevant awards, or for which the awards did not provide.

[6] On 16 March 2026, we received an email from SCMSAC. It proposed that the Commission vary clause 11 of the Agreement (the delegates' rights term) so as to bring it into line with the terms of the relevant awards as amended following the decision of the Full Bench in Decision [2026] FWCFB 5. In the alternative, it submitted:

"We defer to the Commission to determine the most appropriate and efficient way to address the issue. We acknowledge that this may result in clause 28A of the Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 being taken to be a term of the Agreement in place of clause 11."

[7] On 17 March 2026, we received an email from the HSU. Amongst other things, the HSU stated that the variations to the delegates' rights term of the Agreement as SCMSAC proposed would be "sufficient".

[8] However, neither SCMSAC or the HSU explained how I would effect the proposed variations to the Agreement. In the circumstances, I have adopted SCMSAC's alternative proposal.

[9] In its email to the Commission of 17 March 2026, the HSU stated:

"As for the four concerns the HSU has raised, the HSU would like to clarify that whilst we do not contend that the Agreement does not pass BOOT, we would like SCMSAC to adequately address and do an undertaking around our concerns. This will satisfy the HSU and can be considered our endorsement of the EA."

[10] For the reasons outlined in our email to the parties of 13 March 2026, I fail to see how the HSU's concerns preclude approval of the Agreement. I do not consider that they give rise to any BOOT issue, as the HSU apparently concedes. Whether or not the HSU is satisfied that its concerns have been adequately addressed so as to enable it to endorse the Agreement is not to the point. What matters is whether the Commission is satisfied that the Agreement meets the requirements of the Act. None of the HSU's concerns provide a basis on which the Commission would not be so satisfied.

[11] There is an apparent inconsistency between the Agreement and the National Employment Standards. Clause 35.5 of the Agreement provides that "subject to clause 35.5.2, employees shall, where practicable, verbally notify their supervisor of their absence, within half an hour of the commencement of their normal shift". Clause 35.5.2 states that "employees in positions which require engaging a replacement in their absence must verbally notify their supervisor of their absence at least 1 hour prior to the commencement of their normal shift". Section 107(2)(a) of the Act requires the employee to provide notice "as soon as practicable (which may be a time after the leave has started)". However, clause 5.2 of the Agreement states that the NES "apply as minima" under the Agreement, unless the Agreement provides a more favourable outcome. This should ensure that clause 35.5 is not applied in a manner detrimental to the employees when compared with the NES.

[12] Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to the application have been met.

[13] I find that clause 11 of the Agreement is less favourable than the corresponding provisions of the relevant awards. Under section 205A(2) of the Act, clause 11 has no effect and clause 28A of the Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 is taken to be a term of the Agreement.

[14] The HSU has given notice under section 183 of the Act that it wants the Agreement to cover it. As required by section 201(2) of the Act, I note that the Agreement covers the HSU.

[15] The Agreement is approved. In accordance with section 54 of the Act, the Agreement will operate from 30 March 2026. The nominal expiry date of the Agreement is 30 March 2029.

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