s.185 - Enterprise agreement

WARRAMUNDA VILLAGE LIMITED ENTERPRISE AGREEMENT 2025

Application for approval of the Warramunda Village Limited Enterprise Agreement 2025 - explanation of terms of the enterprise agreement and their effect - genuine agreement.

• [1] An application has been made for approval of an enterprise agreement known as the Warramunda Village Enterprise Agreement 2025 (Proposed Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The application is made by Warramunda Village Limited (Employer).

• [2] The Proposed Agreement is a single enterprise agreement. The application names the Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union (HSU) as bargaining representatives for the Agreement.

• [3] The notification time for the Proposed Agreement precedes 6 June 2023, namely 28 February 2023.[1] Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[2] However, the Agreement was made after 6 June 2023, namely on 20 June 2025.[3] Accordingly, the legislative changes to the Act in relation to the better off overall test requirements apply to this approval application.[4]

• [4] In its Form F18, the ANMF advised that it opposes approval of the Proposed Agreement. It contends that the Employer did not comply with the pre-approval requirements in s 180(5) of the Act and so the Agreement was not genuinely agreed to by the relevant employees. The Form F18 summarised the ANMF's concerns as arising on the basis that the Employer did not explain the "worse off aspect" in relation to clauses of the Proposed Agreement relating to the following matters:

(1) night shift allowances for aged care employees;

(4) the impact of reliance of the Aged Care Award 2010 classification structure for personal care workers who hold a Certificate IV; and

• [5] Directions were issued for the filing of responses in relation to the ANMF's objections to the application, and the initial concerns identified by the Commission with the approval application. As part of this process, the Employer proffered proposed undertakings to address the Commission's preliminary concerns, and the ANMF's concern in relation to long service leave pertaining to enrolled nurses. The ANMF indicated its support for the proposed undertaking concerning the latter issue.

• [6] Thereafter, the Commission provided preliminary views in which it was noted as follows:

1. In respect of the NERR and provision of notice to vote, the Deputy President's preliminary view is as follows:
   1. The submissions advanced by the applicant support the Deputy President's proposal to exercise her discretion pursuant to s 188(5) of the Act.
   2. The submissions advanced by the applicant are sufficient to resolve the Commission's initial concern with respect to the provision of the notice to vote.

2. In respect of the BOOT, the Deputy President's preliminary view is as follows:

1. The undertaking proffered at (4) regarding maximum hours for aged care employees appears to resolve the Commission's initial concern.
2. The undertaking proffered at (3) regarding casual overtime for community care employees appears to resolve the Commission's initial concern.

1. The ANMF is supportive of the undertaking proffered at (2) related to long service leave for casual EN's and the Deputy President's preliminary view is that the Commission can accept it to resolve the matter set out in the ANMF's Form F18.

Subject to the responsive views of the employee bargaining representatives to the Deputy President's preliminary views above, the hearing listed to proceed at 2:00pm on Thursday 7 August 2025 relates only to the matters that remain in contest between the parties. The Deputy President understands these matters to be as set out in the ANMF's submissions in reply dated 22 July 2025...

• [7] Having regard to the above preliminary views (to which no objection has been raised by the employee bargaining representatives), I would be satisfied that with the undertakings proffered to date, the Proposed Agreement passes the better off overall test (BOOT).

• [8] To determine the ANMF's genuine agreement concerns, the application proceeded to two hearings before the Commission at which the Employer was granted permission to be legally represented pursuant to s 596(2)(a) of the Act. Submissions were made by the Employer and the ANMF. The HSU did not file an appearance.

• [9] Both prior to 6 June 2023 and currently, s 186(2)(a) requires that in order for a proposed agreement (that is not a greenfields agreement) to be approved, the Commission must be satisfied that the agreement has been genuinely agreed to by the employees covered by it. Section 188(1) of the Act as it stood prior to 6 June 2023 relevantly provided that an enterprise agreement has been genuinely agreed to by the employees covered by it if the Commission is satisfied, inter alia, that the employer complied with s 180(5) and there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

• [10] Section 180(5) of the Act deals with the requirement to explain the Proposed Agreement to employees. It provides as follows:

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

• [11] The Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited,[5] in summarising the decision in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd,[6] set out the following propositions with respect to the inquiry under s 180(5):

[65] First, whether an employer has complied with the obligation in s.180(5) depends on the circumstances of the case.

[66] Secondly, the focus of the enquiry whether an employer has complied with s.180(5) is first on the steps taken to comply, and then to consider whether:

• the steps taken were reasonable in the circumstances; and
• these were all the reasonable steps that should have been taken in the circumstances.

[67] Thirdly, the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given.

[68] Fourthly, an employer does not fall short of complying with the obligation in s.180(5) of the Act merely because an employee does not understand the explanation provided.

[69] That the content of the explanation given is an important consideration in assessing whether all reasonable steps were taken for the purposes of s.180(5) is made clear by the Full Court of the Federal Court in One Key Workforce (No 2).

• [12] In BCG Contracting,[7] Gostencnik DP (as his Honour then was) reasoned that compliance with s 180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument or for the employer to provide an analysis between an agreement and the relevant reference instrument in circumstances where an existing enterprise agreement - not a reference instrument - applies to the employees in their employment. Full Benches of the Commission have accepted this to be the correct approach (and it accords with the Statement of Principles on Genuine Agreement now in operation).[8]

• [13] Section 180(5) requires the Commission to evaluate whether, in all the circumstances, the Employer took all reasonable steps to ensure that the terms of the Proposed Agreement, and the effect of those terms, were explained to the relevant employees in a manner appropriate, taking into account their particular circumstances and needs. The Employer's compliance with s 180(5) need only be established to the satisfaction of the decision-maker (as s 188(1) made clear). Actual compliance with s 180(5) is not a jurisdictional fact. Its objective existence is not a precondition to the Commission's power to approve the Proposed Agreement.[9] The purpose of the obligation is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the Agreement.[10]

• [14] Whether steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. However, a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense.[11] The Full Court in Woolworths[12] recently said as follows:

[58] ...In considering whether a particular term is proposed to operate with an effect that warrants explanation, there is no bright line that separates steps that an employer might reasonably take from steps that extend beyond what is reasonably required.

[59] The effect of a term that entitles an employee to a particular rate of pay for each hour worked is that he or she will be entitled to receive that amount of money in respect of each hour of work that he or she performs. In that sense, the effect is obvious and might well not require much (or even any) explanation. So to observe is not to deny that wage clauses might visit other effects, including some that are specific to individual employees (and, no doubt, some that might not be known by an employer). But whether they require specific explanatory effort by force of s 180(5) of the FW Act is a question that calls for a broad evaluative exercise and that, by its nature, will often not lend itself to a single correct answer.

• [15] The Warramunda Village Health and Allied Services Enterprise Agreement 2018[13] (Health and Allied Agreement) and the Warramunda Village Nurses Enterprise Agreement 2018[14] (Nurses Agreement) currently cover and apply to the relevant employees. Each of these agreements reached their nominal expiry date on 1 March 2022 and contain pay increases to 1 March 2022 (Appendix A of each agreement). It is not in dispute that the Employer agreed, pursuant to a letter to the ANMF dated 26 June 2023, to "apply" the rates of pay arising from the Aged Care Work Value proceedings "in place of" the rates of pay set out in Appendix A of each of the Nurses Agreement and the Health and Allied Agreement from 1 July 2023. Neither the Nurses Agreement or the Health and Allied Agreement were varied to incorporate these rates.

• [16] The positions of the parties, in summary, are as follows. The ANMF contends that in the 30-minute information sessions available to relevant employees, and in the explanatory materials, the Employer did not take reasonable steps to explain the effect of clauses of the Proposed Agreement in relation to the night shift allowance for aged care employees, the employee classification structure and how it affects personal care workers who hold a Certificate IV, the loss of accident make up pay and the shift allowances payable on public holidays (earlier described in the ANMF's Form F18 as a concern regarding 'weekend penalties').

• [17] The Employer's position is that the material before the Commission provides a proper basis for concluding that it has met its obligations under s 180(5) of the Act. It submits that the ANMF has produced no evidence to support its contentions that s 180(5) has not been complied with or that employees were misled. The Employer says that s 180(5) requires all reasonable steps, which it took and that the ANMF's position can only be described as requiring it to have instead taken all possible steps.[15] The Employer says that there was no requirement that every difference between an existing industrial instrument and a proposed enterprise agreement needed to be explained in order for the Commission to be satisfied that all reasonable steps were taken.[16] The Employer says that it provided extensive materials enabling employees to understand the terms of the Proposed Agreement and their effect. It says it also provided explanations in an appropriate manner across 12 information sessions between 10 June and 19 June 2025 and through floor walks.

• [18] Having regard to the parties' respective contentions which are briefly summarised below, I set out my consideration below by reference to each issue and, where appropriate, taking into account the Commission's further indicative modelling.

• [19] The ANMF contends that the Employer failed to explain the night shift allowance for a Level 3 Direct Carer (formerly PCW Grade 2) (personal care workers). In particular, the ANMF submits that the explanatory material failed to explain that personal care workers would be paid less under the Proposed Agreement for working a night shift when compared to what they would be paid pursuant to their current arrangements. This issue arises because the methodology for calculating the allowance under the Proposed Agreement is different from the methodology in the Health and Allied Agreement that currently applies.

• [20] As earlier stated, employees to whom the Health and Allied Agreement applies are contractually paid agreed rates (referred to in the Employer's explanatory materials as the pre-30 June 2025 rates of pay). To explain the terms of the Proposed Agreement and their effect, the Employer provided the employees with, amongst other things, an explanatory document. In relation to this issue, the explanatory document said as follows:[17]

The Agreement matches the entitlements provided for in the modern awards and which are more favourable than the entitlements provided for in the current agreements.

• [21] The ANMF contends that this explanation is "clearly incorrect." It says that there is no indication that the proposed change in the methodology for calculating the night shift allowance results in a substantial reduction for a personal care workers performing night shift. The ANMF submits that this may have affected the way some employees voted.

• [22] In addition to the explanation of terms document, the Employer also provided employees with wages analysis material. Relevantly, for aged care employees, a table was provided which set out the employee's current agreed rate (identified as the pre-30 June 2025 rate of pay) and compared this to the 30 June 2025 base rate payable under the Proposed Agreement (being the rate that applies from approval).[18] In addition, aged care employees were provided with a wages table that compared the base rates in the Proposed Agreement to the base rates in the Aged Care Award 2010.[19]

• [23] The Employer submits that the enforceable rates of pay under the Health and Allied Agreement are the rates set out in Appendix A (save for the operation of s 206 of the Act). It says that the current rates of pay in the Aged Care Award 2010 (and the Nurses Award 2020) include all variations arising from the Aged Care Work Value staged increases. The Employer says that the rates of pay in the Proposed Agreement are greater than the rates in the Nurses Award 2020, the Aged Care Award 2010, the Health and Allied Agreement and the Nurses Agreement. Accordingly, it says that employees are better off overall when a global assessment is conducted pursuant to s 193A of the Act. The Employer contends that the ANMF erroneously urges the Commission to apply the BOOT against the Health and Allied Agreement (and the Nurses Agreement) rather than the modern awards.

• [24] The Employer accepts that personal care workers receive a night shift allowance of $58.26 under their current arrangements.[20] As to the entitlement under the Proposed Agreement, the Employer submits as follows:[21]

Under the [Proposed Agreement] a different albeit equally basic formula is used to calculate the night shift allowance.

Under the [Proposed Agreement] the PCW simply adds 15% to their hourly rate to calculate their entitlement.

That is, the PCW would take their hourly rate and multiply it by 1.15 (or 15%) and then multiply that by how many hours they work. For example, for an 8 hour night shift where 'A' is the PCW's hourly rate payable under the [Proposed Agreement] and 'B' is the total of the formula:

Again, this will appear on the PCW's payslips without the need for a manual calculation.

PCW's provided with the access period materials, having read the materials would have been able to use any of their payslips since 1 July 2023 to work out how much they were paid for a night shift and then compare that against the [Proposed Agreement]. This includes the hourly rate they would be entitled to under the Agreement.

• [25] In support of these submissions, the Employer has prepared a spreadsheet which includes a table demonstrating how much a personal care worker will be paid for 8 hours work on a night shift under the Proposed Agreement:

• [26] This is to be compared to the following table prepared by the Employer which sets out a personal care worker's current entitlement. It is noted that the Aged Care Award 2010 rates of pay as at test time (pre-30 June 2025) were either equal to or less than the agreed rates, which are represented as the pre-30 June rate in the below table:

• [27] The Commission's further indicative modelling in the table below demonstrates that personal care workers performing night shift under the Proposed Agreement would be paid less per shift when compared to their current arrangements under the Health and Allied Agreement in the period to 1 July 2026. There are limitations on conducting precise calculations beyond this date given uncertainties about modern award increases from 1 July 2026 which would likely bear upon the rates in the Health and Allied Agreement by operation of s 206 of the Act. However, it appears that the first two levels would also fall below the Proposed Agreement from 1 July 2026:

Difference between night shift payment based on current Agreement (old methodology) compared to Proposed Agreement (new methodology)

Current agreement calculated on pre-30 June agreed rates[22]

Current agreement calculated on 1 July 2025 Award rates[23]

• [28] The ANMF submits that the above information represents the reasonable step required to be taken by the Employer to explain the effect of the amendment to the night shift allowance under the Proposed Agreement. It says that the Employer's failure to provide this explanation at the relevant time means that the Proposed Agreement has not been genuinely agreed to.

• [29] I am satisfied and I find as follows:

(1) Employees to whom the Health and Allied Agreement applies are contractually paid the agreed rates (the pre-30 June 2025 rates of pay). As at test time, these rates were equal to or exceeded the Aged Care Award 2010. The Health and Allied Agreement was not varied to incorporate these rates of pay.

• (2) The night shift allowance payable to personal care workers pursuant to their current arrangements is set out in the table at paragraph [26]. It is calculated by reference to the terms of clause 35(b) of the Health and Alli[25] Agreement.25 This provides for an allowance of 5% of wage/skill group 5.

(3) The Proposed Agreement provides for a revised methodology for calculating the night shift allowance, being 15% of the employee's ordinary rate of pay (clause 37.6.2).

(4) The Commission's further indicative modelling, demonstrated by the table at paragraph [27], indicates that personal care workers performing an 8-hour night shift will earn less under the Proposed Agreement than they would under their current terms and conditions - for some employees, this issue appears to subsist until 1 July 2026 and for others, beyond this date.

• (5) The current terms and conditions (derived from the Health and Allied Agreement) have no bearing on the Commission's assessment of the BOOT, which is confined to an assessment of the rates of pay in the Proposed Agreement against the relevant modern award.[26] In this case, the Commission's modelling discloses that the rates of pay in the Proposed Agreement do not present a BOOT concern. This is because the night shift allowance in the Proposed Agreement is consistent with the Nurses Award 2020 and the Aged Care Award 2010 and the base rates of pay in the Proposed Agreement exceed the rates in the modern awards.

(6) However, for the purposes of determining whether the Proposed Agreement was genuinely agreed to, the ANMF contends that the explanation provided by the Employer about the night shift allowance (see paragraph [20] above) is incorrect. I do not agree. The entitlement to a night shift allowance does match the entitlement provided for in the identified modern awards. Further, the entitlement does yield a more favourable outcome than the entitlement provided for in the current agreements based on the rates of pay specified in the Health and Allied Agreement and the Nurses Agreement (which were not varied to incorporate the agreed rates).

(7) However, the explanation provided by the Employer at paragraph [20] above is not, in my view, sufficiently complete because it does not adequately explain the effect of the revised methodology for calculating the night shift allowance in the Proposed Agreement for personal care workers. I do not consider that the effect of the new methodology was so obvious that it did not require explanation. The reduced, per shift entitlement under the Proposed Agreement for personal care workers performing night shift in the table at paragraph [27] is meaningful and there is no evidence in the material before the Commission that this was explained by the Employer.

(8) In my view, it was necessary for the Employer to explain to personal care workers that the revised methodology may yield a reduced night shift allowance than under the Proposed Agreement. This was necessary for the purposes of providing personal care workers with an understanding of how their wages and working conditions might be affected by voting in favour of the Proposed Agreement, noting that such employees may routinely work night shift.

• [30] It was submitted by the ANMF that it had taken steps to explain this matter to the relevant employees prior to the vote. I have taken into account the ANMF's submission in this respect and I attribute weight to it, noting that it means that in this case, it cannot be said that employees were not at all informed of the issue prior to voting for the Proposed Agreement. As a general proposition, I also accept, as the Full Bench did in McDonalds,[27] that reasonable steps to explain the Proposed Agreement may include explanations given to employees through collaboration between the Employer and employee bargaining representatives for such steps to be taken. In this case however, there is no evidence of any collaboration between the ANMF and the Employer on this issue. While the relevant employees will, on an overall basis, be better off under the Proposed Agreement, it does not necessarily follow for the purposes of s 180(5) that the Employer took what I consider to be the reasonable step of explaining to the relevant employees the effect of this term by reference to their current terms and conditions of employment. The explanatory material makes no reference to the effect the altered calculation methodology in the Proposed Agreement may have upon the existing terms and conditions of employment of personal care workers working night shift. In my assessment of the circumstances of this matter, I am not satisfied that the Employer took all reasonable steps to explain the effect of the night shift allowance for personal care workers in the Proposed Agreement. I therefore conclude that the Employer failed to satisfy s 180(5) in respect of this issue.

• [31] I do not accept the Employer's submission that any failure on its part to comply with its obligations under s 180(5) in relation to this issue can be regarded as a minor procedural or technical error as identified in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others.[28] This is because I cannot be satisfied that the employees covered were not likely to have been disadvantaged by the error (s 188(2)(a)).

• [32] However, having regard to the ANMF's submissions that it explained the issue to the relevant employees prior to the vote, and the narrow scope of this issue, I indicate my preliminary view that this is a matter that may be amenable to an undertaking to remedy my genuine agreement concern (noting that this is not a matter that gives rise to a BOOT concern). I address this further later in this decision.

• [33] Clause 55 of the Proposed Agreement provides that employees shall be classified in accordance with their applicable modern award. The ANMF submits that it is not clear from the explanation of terms how the Employer has explained the classification structure to aged care employees who hold a Certificate IV in Ageing Support (or equivalent).

• [34] The ANMF submits that under the Proposed Agreement, the classification of Aged care employee - direct care - level 5 - specialist only applies to an employee who holds a Certificate IV as a requirement for the performance of their duties by the Employer. The ANMF says that this is a narrower test than currently applies under the Health and Allied Agreement where an employee will automatically progress to level 5 by reason of holding or obtaining a Certificate IV.

• [35] The Health and Allied Agreement relevantly defines a PCW 3 worker as a person "who holds at the time of engagement a qualification in Aged Care at Certificate 4 level that has been issued by a Registered Training Organisation; or is required by the organisation to obtain such a certificate..."[29]

• [36] Under the Aged Care Award 2010, which is incorporated into the Proposed Agreement pursuant to clause 55, an Aged care employee - direct care - level 5 - specialist is defined as an employee "whose primary role is to provide direct care to residents and who has obtained a Certificate IV in Ageing Support or equivalent qualification as a requirement for the performance of their duties by the employer."[30]

• [37] For the purposes of conducting the evaluative judgment about this issue in the manner contemplated by the Full Court in Mechanical Maintenance,[31] I consider it sufficient to observe that both the Health and Allied Agreement and the Aged Care Award 2010 appear to contemplate that:

(1) an employee may "hold at the time of engagement" or have "obtained" a Certificate IV; and

(2) the organisation may require the Certificate IV for the performance of their duties (or, in the case of the Aged Care Award 2010, an equivalent qualification which is broader).

• [38] The explanation of terms document said as follows in relation to clause 55 of the Proposed Agreement:

The Agreement differs to the current agreements in that instead of replicating classifications, the Agreement refers to the incorporated modern award classifications which apply. Those classifications differ to the current agreements as the classifications in the Agreement match the modern award classifications and are more favourable.

• Nurses Agreement - Schedule 1
• Health and Allied Agreement - Schedule 1

The Agreement term replicates the modern award terms:

• Nurses Award - Schedule A
• Aged Care Award - Schedule B
• SCHCDS Award - Schedule F

• [39] To the extent that there is a difference between the requirements for appointment to an Aged care employee - direct care - level 5 - specialist under the Proposed Agreement/Aged Care Award 2010 as compared to the Health and Allied Agreement, the distinction is a fine one. Any explanation of the terms of an enterprise agreement can be open to challenge on the ground that the explanation could have been made with a greater level of precision or particularity.[32] The explanation demanded by the ANMF in this instance is not, in my view, a reasonable step that was required to have been taken in the circumstances. It is not apparent that a relevant employee's wages and working conditions might be affected in the manner contended by the ANMF. In these circumstances, I am satisfied that omitting this issue from the terms of the explanatory document does not render the explanation inadequate for the purposes of s 180(5) of the Act. It follows that I do not consider that this issue gives rise to a conclusion that the Proposed Agreement was not genuinely agreed to by the employees covered by it.

• [40] The ANMF submits that the explanation provided for the removal of the entitlement to accident make up pay in the Proposed Agreement fails to properly explain how the cost associated with the entitlement is factored into the wages offer. The explanatory document provides as follows:

Note that the Agreement does not provide for an accident pay entitlement provided for in the current agreements as the cost associated with that entitlement has been factored into the wage offer provided.

The Agreement is therefore less favourable than the current agreements in that no entitlement to accident pay is provided, but as the removal of that entitlement has resulted in a higher wage offer, employees are not worse off overall because of the removal of the accident pay entitlement.

• Nurses Agreement - clause 28
• Health and Allied Agreement - clause 28

None of the modern awards provide for accident pay.

• [41] The ANMF has not established that the Employer failed to comply with s 180(5) of the Act in relation to this issue. The obligation upon the Employer was to explain the terms of the Proposed Agreement and the effect of those terms. The explanatory document clearly identified the removal of this entitlement and recorded that the Proposed Agreement is "less favourable" without its inclusion. I do not accept that the Employer was required, for the purposes of satisfying s 180(5) of the Act, to demonstrate how the cost associated with the accident make up pay entitlement had been factored into the wages offer, as contended. It follows that I do not consider that this issue gives rise to a conclusion that the Proposed Agreement was not genuinely agreed to by the employees covered by it.

• [42] The ANMF submits that clause 38 of the Nurses Agreement and clause 35 of the Health and Allied Agreement each provide that shift allowances are to be paid on "any rostered hours of ordinary duty." Further, the ANMF submits that clause 23 of each agreement (public holidays) does not state that public holiday penalties are in substitution of shift loadings. The ANMF submits that clause 37.2.4 of the Proposed Agreement changes this and provides that, in respect of nursing employees, as follows:

The shiftwork loadings prescribed in this clause will not apply to shiftwork performed by a Nursing employee on Saturday, Sunday or public holiday where the payment prescribed by clause 21 and clause 24 applies.

• [43] For clarity, clause 21 of the Proposed Agreement concerns overtime and clause 24 relates to public holidays.

• [44] Further, in respect of aged care employees, the ANMF relies upon clause 24.8 of the Proposed Agreement, which provides as follows:

Payments under this clause are instead of any additional rate for shift or weekend work which would otherwise be payable had the shift not been on a public holiday.

• [45] The Employer accepts that the effect of the above provisions of the Proposed Agreement is that the public holiday penalty is paid in lieu of the shift loading. The Employer's position is that this is consistent with the terms of the Nurses Award 2020 and the Aged Care Award 2010.

• [46] The ANMF submits that the explanatory document misleads employees on this issue as it states as follows:

The Agreement matches the entitlements provided for in the modern awards and which are more favourable than the entitlements provided for in the current agreements.

• Nurses Agreement - clause 38
• Health and Allied Agreement - clause 35
• Nurses Award - clause 20

• [47] The ANMF also submits there is no explanation in the explanatory document of the changes to payment of shift allowances on public holidays under clause 24 (for aged care employees). Rather, it contends that the explanatory document states that aged care employees are better off under the clause except in relation to the exclusion of an unrelated matter (public holiday rostered off benefit at clause 23(h) of the Health and Allied Agreement):

The Agreement is less beneficial than the Health and Allied Agreement only to the extent that clause 23(h) of the Health and Allied Agreement is not provided for in the Agreement.

• [48] As to nurses, the Employer notes the ANMF's concern that there is "no explanation" that "nurses working a public holiday will be worse off" because of a "change to the payment of shift allowances."[33] The Employer submits that this is because nurses will not be worse off overall under the Proposed Agreement in relation to this issue. For the reasons that follow, I agree.

(1) A BOOT concern does not arise in respect of this issue. The entitlement in the Proposed Agreement is consistent with the entitlement in the underpinning modern awards and the base rates in the Proposed Agreement are higher.

(2) With respect to the ANMF's concern regarding the explanation of the Proposed Agreement as against the entitlement in the Nurses Agreement, the Commission's further modelling does not demonstrate that there are relevant disadvantages that were necessary for the Employer to explain:

(a) In relation to a RN2 (both permanent and casual employees) and assuming 8 ordinary hours of work on night shift on a public holiday, the Proposed Agreement is more favourable than the Nurses Agreement, taking into account either the agreed rate (pre-June 2025), or the modern award rate (applied to the rates in the Nurses Agreement by operation of s 206 of the Act).

(b) In relation to an EN1 (permanent employee) and assuming 8 ordinary hours of work on night shift on a public holiday, the Proposed Agreement is more favourable than the Nurses Agreement, taking into account the agreed rate (pre-June 2025). When the modern award rate is applied to the methodology in the Nurses Agreement, a permanent EN1 will earn less for the performance a night shift on a public holiday under the Proposed Agreement than under the Nurses Agreement. While this issue was not explained in the Employer's explanatory material, I accept the Employer's submission that an EN1 is not rostered to perform night shift work on public holidays.

• (c) In relation to an EN1 (casual employee) and assuming 8 ordinary hours of work on night shift on a public holiday, the Proposed Agreement is more favourable than the Nurses Agreement, taking into account either the agreed rate (pre-June 2025), or the modern award rate (applied to the rates in the Nurses Agreement by operation of s 206 of the Act).[34]

• [49] I do not accept the ANMF's contention that the way the Employer explained this issue in the explanatory document, as set out at paragraph [46] of this decision, misleads nurses. The entitlement in the Proposed Agreement does match the entitlement in the underpinning modern awards. With the exception of permanent EN1 employees, the entitlement in the Proposed Agreement is more favourable than as provided for in the Nurses Agreement. As to permanent EN1 employees, I do not consider that the explanatory material provided by the Employer misleads them about their entitlement because these employees are not rostered to perform night shift work on public holidays. It follows that there was no obligation, in my view, for the Employer to explain a potential detriment to permanent EN1s where it is not reasonably foreseeable that such work would be performed by them under the Proposed Agreement.

• [50] As to aged care employees I am satisfied, and I find as follows:

(1) A BOOT concern does not arise in respect of this issue. The entitlement in the Proposed Agreement is consistent with the entitlement in the underpinning modern awards and the base rates in the Proposed Agreement are higher.

(2) With respect to the ANMF's concern regarding the comparison of the Proposed Agreement as against the entitlement in the Health and Allied Agreement, the Commission's further modelling demonstrates as follows:

(a) In relation to a permanent Level 5 - Specialist (with Cert IV) (formerly PCW 3) and assuming 8 ordinary hours of work on night shift on a public holiday without any other hours worked in the week, the Proposed Agreement is less favourable than the Health and Allied Agreement taking into account both the agreed rate (pre-June 2025), or the modern award rate (applied to the rates in the Health and Allied Agreement by operation of s 206 of the Act).

• (b) In relation to a casual Level 5 - Specialist (with Cert IV) (formerly PCW 3) and assuming 8 ordinary hours of work on night shift on a public holiday, the Proposed Agreement is more favourable than the Health and Allied Agreement, taking into account either the agreed rate (pre-June 2025), or the modern award rate (applied to the rates in the Health and Allied Agreement by operation of s 206 of the Act).[35]

• [51] The concern advanced by the ANMF is that the relevant employees were not told that they would be paid less for the performance of night shift on a public holiday when compared to their current entitlements. I accept this is so. However, a permanent Level 5 - Specialist (with Cert IV) (formerly PCW 3) is not likely to perform a single public holiday shift in isolation, without also performing hours of work at other times. In this respect, the Employer submits that the ANMF's objection is based on the premise that the change to the payment of the shift allowance, in isolation, results in such an employee being worse off for a single shift on a public holiday without taking into account that the same employee will be much better off overall under the Proposed Agreement when all of their working hours are taken in to account. The Commission's further indicative modelling demonstrates to my satisfaction that the Employer's submission is borne out, when the Proposed Agreement is compared to the Health and Allied Agreement in relation to this issue.

• [52] I do not consider the explanation provided by the Employer at paragraph [46] and [47] above misleads aged care employees. The entitlement in the Proposed Agreement does match the entitlement in the underpinning modern awards. With the exception of permanent Level 5 - Specialist (with Cert IV) (formerly PCW 3) employees, the entitlement in the Proposed Agreement is more favourable than as provided for in the Health and Allied Agreement.

• [53] As to whether the explanatory material misrepresented the position to permanent Level 5 - Specialist (with Cert IV) (formerly PCW 3) employees, the Full Bench in Appeal by Australian, Municipal, Administrative, Clerical and Services Union[36] considered whether a false representation by an employer in the course of bargaining for an enterprise agreement may constitute a reasonable ground for believing that the agreement has not been genuinely agreed to by employees. This was said to be so "if it could reasonably be expected to have had the effect of deceiving those employees into voting for something which, if they had known the true position, they would not have voted for."[37]

• [54] I do not consider that the explanatory material provided by the Employer could reasonably be expected to have had the effect of deceiving the relevant employees in the manner described above. The Proposed Agreement is less favourable than the Health and Allied Agreement for permanent Level 5 - Specialist (with Cert IV) (formerly PCW 3) employees only where work is performed on night shift on a public holiday without ordinary hours being worked at other times. There was no obligation, in my view, for the Employer to explain a potential detriment for a single public holiday shift worked by such permanent employees where it is not reasonably foreseeable that such work would be performed under the Proposed Agreement in isolation of any other non-public holiday shifts.

• [55] Considered objectively, I do not consider that in the particular circumstances described above it could be concluded that the relevant employees were deceived into voting for the Proposed Agreement, or that they would not have voted for the Proposed Agreement had this issue been addressed in the explanatory material. It follows that I do not consider that this issue gives rise to a conclusion that the Proposed Agreement was not genuinely agreed to by the employees covered by it.

Employer's request for Commission to consider possible undertaking(s)

• [56] In this case, I have found that that there was a failure by the Employer to comply with s 180(5) of the Act in relation to its explanation of a single issue, being the night shift allowance for aged care employees. Consequently, I am not satisfied that the Proposed Agreement has been genuinely agreed to by the employees covered by it pursuant to s 186(2)(a) of the Act.

• [57] The Commission may accept an undertaking in circumstances where it has a concern that the requirements of ss 186 and 187 have not been met. Such undertakings may address "genuine agreement" concerns.

• [58] A decision to exercise the discretion to accept an undertaking is to be made by reference to the matters in s 190 of the Act, taking into account the nature of the concern and the circumstances of the particular approval application under consideration.[38] The Commission must be satisfied that the undertaking meets the concern,[39] and is not likely to cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement.[40]

• [59] The Employer indicated that it would seek an opportunity to provide the Commission with undertakings to resolve any concerns identified in relation to its compliance with s 180(5) of the Act. If the Employer wishes to proffer any undertaking(s) for consideration which address the matter set out in this decision, it is requested to do so by 4:00pm on Tuesday 9 September 2025. If undertaking(s) are proffered, the employee bargaining representatives will be given the opportunity to provide responsive views.

Dr S Stojanova of Counsel, instructed by L. Buntman of Australian Industry Group, for the applicant.

Ms S Bonavia with Ms K Pentreath for the Australian Nursing and Midwifery Federation.

Australian Nursing and Midwifery Federation, 26 August 2025.

[2] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023

[4] 2 Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

[5] Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited [2019] FWCFB 4022 (Ditchfield) at [65]-[69]

[6] Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266; 270 IR 410 (per Flick J); this decision was affirmed on appeal: [2018] FCAFC 77, 277 IR 23

[7] BGC Contracting Pty Ltd [2018] FWC 1466 at [87]

[8] See eg Ditchfield at [71]; Busways Pacific Pty Ltd T/A Busways [2021] FWCA 2019 at [13], in respect of which a Full Bench concluded s 186 was correctly applied in Andrew John Paul v Busways Pacific Pty Ltd [2024 FWCFB 369

[9] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 262 FCR 527 at [103]

[11] BGC Contracting Pty Ltd [2018] FWC 1466, endorsed in AWU v Rigforce Pty Ltd [2019] FWCFB 6960 at [36]; Appeal by Ausdrill Pty Ltd [2022] FWCFB 223 at [26]

[12] Retail and Fast Food Workers' Union Inc v Woolworths Group Ltd [2025] FCAFC 105 at [58]- [59]

[13] [2019] FWCA 3519; AE503549

[14] [2019] FWCA 4514; AE504193

[15] The Employer relies upon Mammoet Pty Ltd [2018] FWCA 4425 at [70] although it is noted this aspect of the decision concerns the (now repealed) s 180(3), and not s 180(5) as contended

[16] Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd [2022] FCAFC 15 at [171]

[20] Applicant's final submissions dated 22 August 2025 at [7]