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

VICTORIAN PUBLIC MENTAL HEALTH SERVICES ENTERPRISE AGREEMENT 2024-2028

Application for approval of the Victorian Public Mental Health Services Enterprise Agreement 2024-2028

[1] An application has been made for approval of an enterprise agreement known as the Victorian Public Mental Health Services Enterprise Agreement 2024 - 2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The application was made by Victorian Hospitals' Industrial Association (VHIA) who is a bargaining representative appointed by each of the employers covered by the Agreement. The Agreement is a single interest employer agreement made by a single interest employer authorisation, a mechanism which exists to enable two or more employers to bargain collectively to be covered by a single agreement. The single interest authorisation was made on 2 October 2025 and covers 19 employers[1].

[3] The single interest authorisation was varied by the Commission on 2 October 2025 to add a further employer - Parkville Youth and Mental Health and Wellbeing Service (Parkville YMHWS)[2].

[4] The agreement therefore covers the 20 employers named in Schedule 1 of the agreement including Parkville YMHWS.

[5] The application was accompanied by a Form F17C Declaration made by VHIA purportedly on behalf of each of the employers for whom it was a bargaining representative. The agreement was also not signed by each employer.

[6] VHIA sought that the Commission waive compliance with these requirements. The other bargaining representatives for the agreement - the Australian Nursing and Midwifery Federation (ANMF), the Health Services Union (Victoria No.2 Branch T/A Health and Community Services Union (HACSU) and National Nurses Ltd (NPP) each supported this request. In particular, each bargaining representative supports the proposition that the agreement was genuinely agreed to by the employees who will be covered by it, within the meaning of the Act and with regard to the Statement of Principles on Genuine Agreement. It is not unprecedented that the Commission waive compliance with these requirements in an application such as this[3]. Particularly on the basis that bargaining representatives supported the request, and based on the submissions of the parties, I am prepared to waive these requirements pursuant to s 586(b) of the Act.

[7] Below, I explain that VHIA provided undertakings pursuant to s 190 of the Act to address several concerns about the agreement raised by the Commission. I was also asked to waive the requirement that these undertakings be signed by each employer covered by the agreement, on the basis that VHIA has authorisation to sign the undertakings on the employers' behalf. For similar reasons as outlined above I am prepared to waive this requirement pursuant to s 586(b) of the Act.

[8] For completeness, I am also satisfied, based on the material filed in support of the application, that the requirement set out in s 180A of the agreement was fulfilled - that each of the bargaining representatives that is an employee organisation provide their written agreement to the request made by the employers that their employees approve the agreement by voting for it.

[9] I note further that the requirement set out in the Statement of Principles on Genuine Agreement - that employees be informed their employer is bargaining for an enterprise agreement and of the proposed coverage of the agreement, and of the employees' rights to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice, and how to exercise those rights - was fulfilled by the employers by providing their employees with a Notice of Employee Representational Rights. Several of the employers provided those notices more than 14 days after the notification time for the agreement. I am nevertheless satisfied that employees were provided that information at such a time and in such a manner that they had a reasonable opportunity to be represented in bargaining for the agreement, and were not disadvantaged if that period of time was longer than 14 days.

[10] In response to several issues raised with VHIA in relation to its application, it has provided written undertakings, a copy of which are attached in Annexure A. The views of the bargaining representatives in relation to the undertakings have been sought. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Interaction with the National Employment Standards

[11] Clause 11.6 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

1. Personal leave (Notice): Clause 38A.5 of the Agreement states an employee must inform the employer of their absence in respect of personal leave no less than 1.5 hours prior to the commencement of the rostered shift. This may be inconsistent with s. 107 of the Act which provides for notice to be given as soon as practicable (which may be a time after leave has started).

2. Annual leave: Clause 38A.1 of the Agreement expresses the entitlement to annual leave in hours rather than weeks as per s 87 of the Act.

3. Redundancy: Clause 20.9 of the Agreement appears to indicate that severance pay is not payable where the employer finds suitable alternative employment. Section 120 of the Act requires that a variation of the severance pay prescription can be made on application to the Commission.

4. Public holiday substitution: Clauses 135.8 of the Agreement provides for majority agreement between employees and the employer as to the substitution of public holidays whereas s.115(3) of the Act only provides for an individual employee to agree with the employer to this effect.

[12] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[13] The ANMF and HACSU, each being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the ANMF and HACSU.

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[15] VHIA, sought that if the agreement was approved, it be varied pursuant to s 218A of the Act, to correct several errors, defects or irregularities (the variation application).

[16] Section 218A of the Act is akin to the slip rule found in s 602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s 218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

[17] VHIA submits that the amendments seek to address errors obviously arising from the formatting of the Agreement. The variations are supported by each of the bargaining representatives. I am satisfied that these are obvious errors. I am satisfied that the variations should be made, and that it is appropriate to do so by varying the Agreement pursuant to s 218A of the Act.

[1] PR783191

[2] Application by Parkville Youth and Mental Health and Wellbeing Service [2025] FWC 2910

[3] See for example Re Application by United Workers Union [2024] FWCFB 461

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