Nurse and Midwife to Patient Ratios Act 2025

The Act organises its rules around several core legal and operational concepts that determine who must do what and how compliance is measured.

Ratios and minimum staffing requirement: The Act distinguishes between a “ratio”, being a staffing requirement in Schedule 1 Part 2 or a variation applied to a nominated mixed ward or by agreement (see definition of ratio in s 3), and a “minimum staffing requirement”, which is a Schedule 1 Part 3 requirement (s 3; s 12). Both are statutory duties on incorporated hospitals (s 7(1) and s 12).

Hospital site categories: Schedule 1 Part 1 categorises hospital sites as Category 1 to Category 4. Several ratios differ by hospital category; for example, general medical and surgical wards have category‑specific ratios in Schedule 1 cl 9. The Governor may amend these categories by regulation (s 21(2)(a)).

Ward definitions and unit roles: “Ward” is broadly defined to include any ward, unit, department or component managed by a nurse unit manager or midwife unit manager (s 3). The Act distinguishes between nurse/midwife unit managers and nurses/midwives in charge. A nurse or midwife in charge may be assigned patient allocations provided total staffing still meets the ratio (s 7(2)(d)).

Mixed wards and individualised mixed ward ratio: Where a ward contains different clinical “portions” (mixed ward), hospitals must nominate those wards every six months, publish details online, estimate expected occupied beds by portion, and then calculate staffing using the “individualised mixed ward ratio” method in s 8(6). If a hospital fails to nominate, the most demanding portion’s ratio applies to the whole ward until nomination occurs (s 8(4)). The Act mandates publication requirements for nominations (s 8(1)(b)).

Rounding and flexibility: Ratios are applied to the actual number of patients in a ward and if the division does not give a whole number, the hospital must add one additional nurse or midwife to comply (s 7(2)(a)-(b)). The Act allows “flexible” application to evenly distribute workload with regard to the level of care required by patients (s 7(2)(c)).

Variation process: Only the Chief Executive and a relevant union can enter into an agreement to vary a ratio, and only subject to any prescribed procedures; once entered and complied with by an incorporated hospital, that compliance is taken to satisfy the ratio (s 11). The Chief Executive must publish the varied ratio in the Gazette as soon as reasonably practicable (s 11(4)).

Emergency exception: A hospital will not be in breach where non‑compliance results from an emergency situation as defined (Emergency Management Act 2004 or Public Health Act 2011), provided the shortfall could not reasonably have been anticipated and the hospital has determined the staffing level is safe and adequate; notification to relevant unions is required (s 9).

Dispute resolution and enforcement architecture: The Act mandates local dispute procedures (s 15), permits SAET to resolve unresolved local disputes and to arbitrate with broad remedial powers (s 16), and provides for civil penalty orders but only if the Court finds contraventions were deliberate and part of a systematic pattern of conduct (s 17). Civil penalty proceedings are civil in nature and governed by civil procedure and evidentiary rules as under the Fair Work Act (s 18). Costs for civil penalty proceedings are generally borne by each party unless the Court finds unreasonable or frivolous conduct (s 19).

Interaction with industrial law and enterprise agreements: The Act precludes enterprise agreements created after commencement from containing minimum staffing levels in the same settings as the Act (s 6). Schedule 2 amends the Fair Work Act to require SAET to refuse approval of an enterprise agreement that makes provision for minimum staffing levels in the same setting as this Act (Schedule 2 Part 1, amending Fair Work Act s 79). The Act designates certain existing enterprise agreements as “relevant enterprise agreement”, and provides that where those agreements require higher staffing levels they continue to apply instead of the Act’s ratios (s 3 definition; s 14).

Regulatory delegation and adjustment: The Governor may make regulations to amend Schedule 1,adding or removing hospital sites from categories, including or removing wards from Part 2, or making other consequential changes (s 21(2)). Regulations may also incorporate standards prepared by a prescribed body, and may confer discretion on a Minister or other specified person (s 21(3)(c), (e)).

Transparency and reporting: Incorporated hospitals must include in their annual report specified summaries of local disputes, SAET applications, SAET outcomes and actions taken, and civil penalty applications and orders (s 20).

Key definitional anchors: The Act uses registration under the Health Practitioner Regulation National Law to define “registered nurse”, “enrolled nurse” and “midwife” (s 3). It defines emergency situations by reference to declarations under existing emergency and public health statutes (s 3). These external references integrate the Act into broader statutory frameworks.

Primary duty-bearers: The operative obligations fall on incorporated hospitals as defined in the Health Care Act 2008, that is organisations operating hospital sites. The hospital must ensure each ward to which a ratio applies is staffed accordingly (s 7(1)) and that hospital sites subject to minimum staffing requirements meet those minima (s 12).

Workforce categories impacted: The Act applies to “nurses” (registered or enrolled) and “midwives” as registered under the Health Practitioner Regulation National Law (see definitions in s 3). It differentiates between registered nurses and enrolled nurses by retention of the separate registration definitions. Certain ratio entries specify “nurse or midwife” and others specify “midwife” or “registered nurse” only. For example, birthing suites require 1 midwife per patient (Schedule 1 cl 7(1)). Small hospitals must provide at least one registered nurse plus one other nurse or midwife on all shifts (Schedule 1 cl 19(1)).

Unions and eligible employees: Eligible nurses and eligible midwives employed by an employing authority under s 34 of the Health Care Act 2008 and relevant unions have standing to initiate local disputes under s 15(1). Eligible nurses, eligible midwives and relevant unions can bring civil penalty applications to the South Australian Employment Court (s 17(2)). The Act recognises relevant unions in definitions (s 3) and gives them a role in approving local dispute procedures (s 15(3)) and in entering ratio variation agreements with the Chief Executive (s 11(1)).

Government actors and regulators: The Chief Executive of the Department has the power to negotiate ratio variations with relevant unions and must publish any varied ratio in the Gazette (s 11). The Governor makes regulations that can alter categories and ratios and confer other powers or standards (s 21). SAET and the South Australian Employment Court have responsibilities for dispute resolution and civil penalty enforcement under Parts 3 and 4 (ss 16 to 18). The Treasurer receives any civil penalties ordered and those funds are credited to the Consolidated Account (s 17(7)).

Patients and public safety stakeholders: Though the Act imposes duties on hospitals rather than rights in private action by patients, its stated objects focus on patient safety and optimising outcomes (s 4). Hospitals’ duty to staff according to ratios directly affects patient care delivery, and the emergency exception in s 9 expressly permits non-compliance where a hospital determines that staffing remains “safe and adequate”.

Enterprise agreements, employers and bargaining parties: The Act directly interacts with enterprise bargaining. It makes clear that an enterprise agreement entered into after commencement must not include minimum staffing levels in the same settings as this Act, and is void to the extent it does so (s 6). The Act identifies a “relevant enterprise agreement” (the Nursing/Midwifery (South Australian Public Sector) Enterprise Agreement 2022 or any successor approved prior to commencement) and treats it specially for the preservation of higher staffing levels (s 3 definition; s 14). Schedule 2 further amends the Fair Work Act to require SAET to refuse to approve agreements that make provision for minimum staffing levels in the same settings as the Act (Schedule 2 Part 1).

Other statutory regimes: The Act cross-references emergency and public health declaration powers in the Emergency Management Act 2004 and the South Australian Public Health Act 2011 to define “emergency situation” for the purpose of the s 9 exception (s 3). It also imports definitions and registration status from the Health Practitioner Regulation National Law for professional categories (s 3). For State aged care beds, it requires staffing to align with staffing requirements imposed under the Commonwealth Aged Care Act 2024 as if the State bed were a Commonwealth aged care bed (Schedule 1 cl 20(1)).

Who may sue or be sued: Eligible nurses, eligible midwives and relevant unions can apply for civil penalty orders; the South Australian Employment Court issues civil penalty orders if satisfied of the requisite state of mind and pattern of conduct (s 17). Hospitals are the targeted respondents. The Act also limits proceedings under the Fair Work Act for disputes arising from a relevant enterprise agreement to the extent it provides a minimum staffing level (s 13(2)), though this is suspended during the moratorium period (Schedule 2 cl 2(3)).

Obligations on incorporated hospitals: The central duty is to staff each ward to which a ratio applies in accordance with that ratio (s 7(1)). For mixed wards, a hospital must nominate and publish nominated mixed wards every six months and staff them per the individualised mixed ward ratio (s 8). Hospitals must observe minimum staffing requirements for certain sites and wards under Schedule 1 Part 3 (s 12). Small hospitals must have at least one registered nurse and one other nurse or midwife on every shift (Schedule 1 cl 19(1)). The rounding rule requires hospitals to staff an additional nurse or midwife when patient counts do not divide into a whole number under the relevant ratio (s 7(2)(b)).

Flexibility and patient allocation: The Act allows some flexibility for workload distribution; a ratio “may be applied in a flexible way in order to evenly distribute the workload, having regard to the level of care required by patients” (s 7(2)(c)). A nurse or midwife in charge may be assigned a patient allocation, so long as the overall number of nurses or midwives meets the ratio (s 7(2)(d)).

Duty to notify unions in emergencies and nominations: If a hospital relies on the emergency exception, it must notify any relevant union where a ward is not to be staffed according to a ratio because of s 9(1) (s 9(2)). For mixed ward nominations, hospitals must publish on their websites details including expected occupied beds by portion, relevant ratios, and other prescribed information (s 8(1)(b)).

Variation mechanism: The Chief Executive and a relevant union may agree to vary a ratio for a specified ward (s 11(1)). Agreements must be made in accordance with any prescribed procedures (s 11(2)). Once an incorporated hospital complies with such an agreement, that hospital is taken to comply with the ratio (s 11(3)). The Chief Executive must publish the varied ratio in the Gazette promptly (s 11(4)).

Employee rights to raise disputes and seek remedies: Eligible nurses and eligible midwives, or a relevant union on their behalf, can initiate a local dispute by notifying the incorporated hospital of a reportable matter,either an alleged breach of a ratio/minimum staffing requirement or a dispute about a hospital’s determination under s 9(1)(b) that staffing is safe and adequate (s 15(1); definitions in s 15(6)). If local resolution fails, a party may apply to SAET for resolution (s 16(1)). For civil penalties, eligible nurses, eligible midwives or relevant unions may apply to the South Australian Employment Court to seek a civil penalty only if the Court is satisfied the contravention was deliberate and part of a systematic pattern (s 17(1)-(2)). The Act sets a 12 month limitation on civil penalty applications from the date of alleged contravention (s 17(2)(a)).

Rights preserved for higher enterprise agreement minima: If a relevant enterprise agreement provides for higher minimum staffing than the Act, that higher requirement applies instead of the Act’s ratio or minimum staffing requirement (s 14(1)). That staffing requirement continues to apply despite expiry of the enterprise agreement (s 14(2)).

Limits on enterprise agreement content and approval: Post-commencement enterprise agreements cannot provide minimum staffing levels in the same setting as ratios or minimum staffing requirements under this Act; they are void and of no effect to that extent (s 6). Schedule 2 amends the Fair Work Act to require SAET to refuse approval of an enterprise agreement if it makes provision for a minimum staffing level in the same setting as this Act (Schedule 2 Part 1).

Reporting duties: Incorporated hospitals must include in their annual reports summaries of local notifications, SAET applications, SAET outcomes and actions taken, applications for civil penalties and any civil penalty orders against the hospital (s 20).

Costs and conduct obligations in dispute resolution: Parties to local disputes must act in good faith and promptly (s 15(4)). Each party bears its own costs in local dispute resolution (s 15(5)). In civil penalty proceedings, parties generally bear their own costs unless the Court finds one party acted unreasonably or frivolously, in which case costs may be ordered (s 19).

Regulatory compliance and administrative powers: The Governor may make regulations that change hospital categories, add or remove wards subject to ratios, and make consequential amendments to Schedule 1 (s 21(2)). Regulations may incorporate external standards and can confer discretionary determinations to Ministers or other bodies (s 21(3)(c), (e)), which affects how operational detail might be specified beyond the Act itself.

Threshold for civil penalties and standard of mental element: The Act does not criminalise breaches. It provides for civil penalty orders only where the South Australian Employment Court is satisfied that an incorporated hospital contravened a civil penalty provision (defined as s 7(1) and s 12) and that the conduct constituting the contravention was deliberate and part of a systematic pattern of conduct (s 17(1)). The requirement that conduct be “deliberate and part of a systematic pattern” raises a higher threshold than simple negligence or inadvertent breach; proof that the hospital expressly, tacitly or impliedly authorised the conduct will be taken as proof of deliberation (s 17(3)).

Who can apply and time limits: Applications for a civil penalty order may only be made by an eligible nurse or eligible midwife working at the hospital site where the contravention is alleged, or by a relevant union, and must be made within 12 months of the alleged contravention (s 17(2)). This restricts standing to individuals employed at the relevant hospital site and relevant unions.

Quantum and destination of penalties: The Court may order a civil penalty not exceeding $10,000 that it considers appropriate (s 17(1)). Any civil penalty must be paid to the Treasurer and credited to the Consolidated Account (s 17(7)). The penalty may be recovered as a debt (s 17(8)).

Aggregation and recurrence rules: Two or more contraventions committed by the same incorporated hospital arising out of a course of conduct are treated as a single contravention (s 17(5)), unless the later contravention was committed after the Court had already imposed a civil penalty for an earlier contravention, in which case s 17(5) does not apply (s 17(6)). The Court may have regard to factors including the number of contraventions, the period over which they occurred, the number of wards affected and the hospital’s response to complaints when deciding whether conduct was part of a systematic pattern (s 17(4)(a)).

Procedural framework and evidentiary rules: The Act makes contravention of civil penalty provisions a civil, not criminal, matter (s 18(1)) and requires the South Australian Employment Court to apply the rules of evidence and civil procedure used for civil penalty proceedings under the Fair Work Act when hearing such proceedings (s 18(2)). Costs are generally not awarded against parties in civil penalty proceedings unless the Court finds unreasonable or frivolous conduct (s 19).

Dispute resolution powers of SAET: For non‑civil penalty disputes, SAET, constituted as an industrial relations commission, may resolve local disputes by mediation, conciliation, arbitration, or by making recommendations or expressing opinions (s 16(2)). Where SAET arbitrates, it may make any order it considers appropriate for prompt settlement of the dispute (s 16(3)). Parties applying to SAET must notify the Chief Executive within 7 days of the application (s 16(4)).

Moratorium and transitional effect: The Act contains a moratorium in Schedule 2 Part 2 that prevents a party to a local dispute from applying to SAET during the moratorium period, prevents civil penalty applications to the South Australian Employment Court during that period, and suspends section 13 (which otherwise renders relevant enterprise agreements of no effect to the extent they provide minimum staffing levels) during the moratorium period (Schedule 2 cl 2(1)-(3)). The moratorium period is two years from assent (Schedule 2 cl 2(5)). During the moratorium hospitals must act in good faith and take reasonable measures to comply with ratios (Schedule 2 cl 2(4)).

Reporting and transparency as enforcement levers: The Act requires hospitals to include in their annual reports summaries of local notifications, SAET applications, SAET outcomes, civil penalty applications and civil penalty orders (s 20). These reporting obligations create administrative transparency that may influence regulatory and stakeholder responses even where civil penalties are limited.

Limits on criminal or broader civil liability: The Act expressly provides that contraventions of civil penalty provisions are not criminal offences (s 18(1)). It does not create private tort claims for patients or a general right of action beyond the specified civil penalty pathway and the SAET dispute process.

Regulatory discretion and delegated detailing: Regulations may alter categories, add or remove wards from Schedule 1, or incorporate standards and confer determination powers on Ministers or other bodies (s 21(2)-(3)). That means practical enforcement contours could change by subordinate instrument without amending the Act.

Fair Work Act and enterprise bargaining: The Act directly constrains enterprise bargaining outcomes in the State public health context. Section 6 provides that an enterprise agreement entered in accordance with Chapter 3 Part 2 of the Fair Work Act 1994 after commencement must not make provision for minimum staffing levels applying in the same setting as the Act, and any such provision in an agreement is void and of no effect. Schedule 2 Part 1 amends the Fair Work Act 1994 s 79 to require SAET to refuse to approve an enterprise agreement if it contains minimum staffing provisions in the same settings as the State Act, thereby inserting the State’s policy constraint into the enterprise agreement approval process (Schedule 2 Part 1, amending s 79).

Interaction with existing enterprise agreements: The Act defines “relevant enterprise agreement” and renders such agreements of no effect for the purposes of the Act insofar as they purport to provide minimum staffing levels in the same settings as this Act (s 13(1)). However, s 14 preserves any higher staffing level in a relevant enterprise agreement, making that higher level the operative standard instead of the Act’s ratio and continuing its effect after expiry of the agreement (s 14(2)). Note that the transitional moratorium suspends s 13 for two years after assent (Schedule 2 cl 2(3)), which affects the immediate interaction with existing enterprise agreements.

Health Care Act 2008 and employing authorities: The Act frequently references the Health Care Act 2008, including in defining “incorporated hospital” and “eligible nurse/midwife” (s 3 and s 15(6)). Eligible nurses and midwives are those employed to work in incorporated hospitals under s 34 of the Health Care Act 2008, and the Act requires hospitals to report information in their annual reports under s 37 of the Health Care Act 2008 (s 20). The Chief Executive’s role is the Chief Executive of the Department responsible for assisting a Minister in administering this Act (s 3).

Emergency and public health statutes: The Act’s emergency exception depends on declarations under the Emergency Management Act 2004 or the South Australian Public Health Act 2011; those statutes are therefore integral to how s 9 will be applied in practice (s 3, definition of emergency situation and s 9). Hospitals must determine that staffing remains safe and adequate before relying on s 9, and notify relevant unions if they do so (s 9(1)-(2)).

Fair Work (Registered Organisations) Act 2009 and industrial representation: The Act’s definition of “relevant union” requires that the entity be registered under the Fair Work (Registered Organisations) Act 2009 and be an association of employees registered under the Fair Work Act 1994 (s 3). That ties standing and bargaining eligibility to existing Commonwealth registration regimes.

Health Practitioner Regulation National Law: The Act imports registration statuses for “registered nurse”, “enrolled nurse” and “midwife” from the Health Practitioner Regulation National Law, so professional registration frameworks determine who can be counted under the ratios (s 3).

Commonwealth Aged Care Act: For State aged care beds at non-Category 1 or 2 hospital sites, staffing must be in accordance with staffing requirements imposed under the Commonwealth Aged Care Act 2024 as if the State bed were a Commonwealth aged care bed (Schedule 1 cl 20(1)). This creates an explicit linkage that causes State obligations to track applicable Commonwealth aged care staffing requirements in those settings.

Procedural and evidentiary rules: Enforcement proceedings for civil penalties are governed by the rules of evidence and procedure for civil proceedings under the Fair Work Act (s 18(2)), meaning Commonwealth-style civil penalty procedural norms apply in the South Australian Employment Court for these matters.

Regulatory powers: The Act gives the Governor (and by extension the Executive) broad regulation-making power to amend Schedule 1 categories and ratios and to incorporate external standards (s 21). This means the statutory architecture can be adjusted by the Executive within delegated legislative powers, altering practical interactions with other instruments and standards.

Transitional moratorium: Schedule 2 Part 2 imposes a two year moratorium from assent during which parties to local disputes may not apply to SAET and civil penalty applications may not be brought to the South Australian Employment Court (Schedule 2 cl 2(1)-(2)). The moratorium also disables s 13 during that period (Schedule 2 cl 2(3)), preserving existing enterprise agreement operation for two years while requiring hospitals to act in good faith to comply (Schedule 2 cl 2(4)).

The Act as provided includes only its principal enactment details and no subsequent amending statutes within the text supplied. The Legislative History section indicates the Act is the Principal Act, titled Nurse and Midwife to Patient Ratios Act 2025, assented to on 5 November 2025 and noted as uncommenced (Legislative history note). The Act provides for commencement on a day fixed by proclamation (s 2), so any staged commencement may be effected by proclamation.

The Act includes in Schedule 2 an express amendment to the Fair Work Act 1994 (Schedule 2 Part 1), inserting an additional subsection into s 79 of that Commonwealth Act to require SAET to refuse to approve an enterprise agreement if it contains minimum staffing levels in the same settings as the State Act. That is the only consequential amendment identified in the text provided.

The Act also contains internal mechanisms for amendment by regulation. Section 21(2) expressly empowers the Governor to make regulations that amend Schedule 1 Part 1 to add, change or remove hospital sites from categories, and to amend Schedule 1 Part 2 to include or remove wards and ratios. Section 21(3)(d) allows regulations to make saving or transitional provisions consequential on the enactment or commencement of the Act or on making regulations. Those regulatory powers thus permit practical change to coverage and ratios without parliamentary amendment of the principal Act.

The Act creates transitional provisions in Schedule 2 Part 2, including a two year moratorium commencing from the day the Act is assented to by or on behalf of the Crown. During that moratorium the application of certain enforcement provisions is suspended: parties to local disputes may not apply to SAET and persons may not apply to the South Australian Employment Court for civil penalties, and s 13 has no effect (Schedule 2 cl 2(1)-(3)). The moratorium itself is a transitional measure with statutory force under the Act.

No further amendment history, subordinate legislation, disallowable instruments or commencement proclamations are included in the provided text. If regulations or proclamations have been made subsequently, they are not part of the provided source and should be checked in the official legislation register. The Act’s commencement is uncommenced in the legislative history provided, meaning operative obligations will only arise once a proclamation fixes the commencement day (s 2; Legislative history note).

The text provided contains no record of litigation under the Act. It includes procedural channels for dispute resolution and civil enforcement, but no cases, decisions or judicial interpretations are listed. The Act creates new jurisdictional pathways for SAET and the South Australian Employment Court (ss 16 and 17), meaning litigation pathways will be available post-commencement for eligible nurses, eligible midwives and relevant unions; however the Schedule 2 moratorium places a two year period from assent during which applications to SAET or for civil penalties cannot be made (Schedule 2 cl 2(1)-(2)). That moratorium will delay the accumulation of any litigation history while the moratorium is in effect.

Because the Act requires SAET to apply the rules of evidence and procedure for civil proceedings as under the Fair Work Act s 18(2), any civil penalty litigation will follow established Commonwealth-style civil penalty procedure, but no South Australian decisions under this Act are present in the provided material. Likewise, the amendments to the Fair Work Act s 79 in Schedule 2 Part 1 will alter SAET’s enterprise agreement approval function; there is no record in the provided text of challenges or judicial review of that amendment.

When the Act commences and the moratorium expires, expect potential litigation in three forms, each contingent on the Act’s provisions: (1) SAET dispute resolution/arbitration where local dispute procedures have failed (s 16); (2) civil penalty proceedings in the South Australian Employment Court where the court is satisfied of deliberate and systematic contraventions (s 17); and (3) potential industrial coverage disputes related to enterprise agreements and the new constraints on agreeing minimum staffing levels (s 6 and Schedule 2 Part 1). None of these are currently recorded in the Act text provided.

The Act contains multiple technical and practical features that can cause unexpected operational or legal consequences if not managed deliberately.

High threshold for civil penalties: Civil penalties are only available where contraventions were both deliberate and part of a systematic pattern of conduct (s 17(1)). This is a higher mental element than simple breach, so isolated or inadvertent non-compliance may not attract civil penalty orders. At the same time, proof that the hospital authorised the conduct expressly, tacitly or impliedly will be taken as proof of deliberation (s 17(3)), so widespread or endemic resourcing decisions may be evidence of deliberation.

Standing and limitation period narrow: Only eligible nurses, eligible midwives or relevant unions may apply for civil penalties (s 17(2)). Applications must be made within 12 months of the alleged contravention (s 17(2)(a)). This tight window requires prompt evidence collection and decision about litigation.

Mixed ward nomination mechanics and gaming risk: Hospitals must nominate mixed wards every six months and publish detailed expected bed allocations and ratios (s 8(1)). Failure to nominate causes the whole mixed ward to be staffed according to the portion that would require the highest number of staff (s 8(4)), which can be punitive. Conversely, the requirement to estimate expected occupied beds and portions using prior 12 month data and anticipated factors (s 8(2)) creates an administrative process that could be manipulated to produce a more favourable “individualised mixed ward ratio” if not transparently audited. Regulations may prescribe additional information to be published (s 8(1)(b)(vi)).

Rounding up increases staffing counts: The Act requires an additional nurse or midwife where patient numbers divided by the ratio do not produce a whole number (s 7(2)(b)). That rounding rule increases staffing obligations above pure ratio arithmetic and requires careful rostering systems to account for increments.

Emergency exception requires internal safety determination and union notification: To rely on the emergency exception a hospital must determine that the staffing level is safe and adequate (s 9(1)(b)) and notify any relevant union (s 9(2)). There is no statutory checklist for that safety determination; the absence of prescribed criteria could create disputes about whether the exception was legitimately invoked. Those disputes are reportable matters under s 15 and may escalate to SAET if unresolved.

Interactions with enterprise agreements are complex: Post-commencement an enterprise agreement cannot include minimum staffing levels in the same setting as the Act (s 6), and Schedule 2 amends the Fair Work Act to require SAET to refuse approval of agreements that do so. However, s 14 preserves higher minimums in the defined “relevant enterprise agreement”, and that preservation continues despite expiry (s 14(2)). The transitional provision suspending s 13 for two years (Schedule 2 cl 2(3)) adds an extra layer of complexity to which agreements apply when. Parties engaging in bargaining need to be clear which rules apply and when.

Regulation-making scope: Section 21 allows the regulations to amend Schedule 1 and to incorporate external standards and confer decision-making discretion (s 21(2)-(3)). That means that although the Act sets broad principles and particular ratios, much operational detail and coverage could change by regulation without further parliamentary debate, which requires careful monitoring of subordinate instruments.

Reporting obligations impose administrative burdens: Hospitals must include detailed summaries of local disputes, SAET applications and civil penalty orders in annual reports (s 20). Tracking and producing those summaries will create compliance costs and may influence public, political or funding responses.

Small hospitals and rural differences: Small hospitals must provide at least one registered nurse and one other nurse or midwife on all shifts (Schedule 1 cl 19). For some small or remote sites, workforce supply constraints may make meeting this an operational challenge; the Act allows regulation to change categories (s 21(2)(a)), but until such amendments are made hospitals must comply.

Linkage to Commonwealth aged care standards: For State aged care beds at non-Category 1 or 2 sites, the Act requires staffing as if the bed were a Commonwealth aged care bed subject to the Commonwealth Aged Care Act 2024 (Schedule 1 cl 20). Changes at Commonwealth level may therefore affect State obligations, producing dependency and potential mismatches in timing or interpretation.

Moratorium defers enforcement but not compliance pressures: The moratorium prevents applications to SAET and civil penalty orders for two years from assent and suspends the operation of s 13 during that period (Schedule 2 cl 2). However hospitals must act in good faith to comply during the moratorium (Schedule 2 cl 2(4)), and public reporting obligations remain in s 20. That combination reduces immediate litigation risk but retains transparency and administrative pressure.

Costs borne by hospitals and potential budget consequences: The statutory ratios and rounding rule increase staffing requirements in many settings. The Act does not provide funding. Hospitals and employing authorities bear the cost of recruiting and rostering additional nurses and midwives to meet the statutory minima. The Treasurer receives civil penalties and they are credited to the Consolidated Account (s 17(7)), not to funding hospitals. The Act contains no explicit funding or compensation mechanism.

Immediate compliance checklist for incorporated hospitals

1. Map hospital sites to Schedule 1 categories. Confirm whether your site is listed in Schedule 1 Part 1 as Category 1, 2, 3 or 4, or whether it is a “small hospital” under Schedule 1 cl 19. If your site is not listed and is not a small hospital, monitor regulations for category changes because s 21 permits Governor-in-Council regulation to alter categories (s 21(2)(a)).

2. Identify all wards subject to ratios. Cross-check Schedule 1 Part 2 to determine which wards on your site are explicitly captured (Schedule 1 cls 5-18). Where a ward is not listed but performs similar functions, note that regulations may add wards to Schedule 1 Part 2 (s 21(2)(b)(i)).

3. Implement staffing calculations with the rounding rule. For each shift, calculate staffing on the basis of actual occupied beds (s 7(2)(a)). Where patient counts produce non-whole numbers after division by the ratio, roster an additional nurse or midwife equal to the rounding rule (s 7(2)(b)). Ensure rostering systems reflect this automatic “round up”.

4. Configure assignments and nurse/midwife in charge roles. Ensure that nurse or midwife in charge counts are implemented consistent with the Act; a nurse/midwife in charge may be assigned patient allocations if headcount meets the ratio (s 7(2)(d)). For mixed wards only one nurse in charge may be required for the entire ward if relevant ratios require such a role for portions (s 8(3)(c)).

5. Establish a mixed ward nomination and publication process. For any mixed ward, ensure a six‑monthly cycle of nomination and publication on the hospital website containing the required particulars set out in s 8(1)(b). Base expected occupied bed estimates on the prior 12 months and any known or anticipated factors (s 8(2)). Create transparent records of the calculations and the date of nomination given that failure to nominate exposes the hospital to the more demanding ratio (s 8(4)).

6. Document emergency exception decisions and notify unions. If a staffing shortfall arises from an emergency situation as defined, document why the emergency could not reasonably have been anticipated, evidence the hospital determination that staffing remained safe and adequate, and notify any relevant union promptly as required by s 9(2).

7. Review enterprise agreement clauses. Do not include minimum staffing levels for settings covered by the Act in any enterprise agreement entered after the Act’s commencement; such provisions are void (s 6). Determine whether your hospital is subject to the “relevant enterprise agreement” and whether that agreement sets higher minima preserved under s 14(1)-(2). Keep track of the moratorium period provisions in Schedule 2 and their effect on s 13 during the moratorium.

8. Agree or seek variation only through the prescribed route. If change to a ratio is needed for a specified ward, engage the Chief Executive and relevant union to negotiate an agreement under s 11, and ensure any prescribed procedures are followed. Ensure the Chief Executive publishes any varied ratio in the Gazette as required (s 11(4)).

9. Develop and approve local dispute procedures with the relevant union. The Act requires local dispute resolution procedures to be developed by the incorporated hospital and determined with the approval of the relevant union (s 15(2)-(3)). Put formal, timely procedures in place and train staff in how to initiate a reportable matter.

10. Record-keeping and reporting compliance. Maintain records of notifications under s 15, SAET applications, arbitration outcomes, and any civil penalty proceedings. Prepare the content for the annual report requirements under s 20 so that summaries of notifications, SAET applications and outcomes, and details of civil penalty orders are available and published.

11. Monitor regulatory instruments and Gazette notices. Because the Governor may amend Schedule 1 and regulations may incorporate standards, monitor subordinate legislation and the Gazette for changes to categories, ratios and prescribed procedures (s 21). Also track any Gazette publication of varied ratios under s 11(4).

12. Train rostering, payroll and human resources staff. Update rostering, leave and recruitment policies to incorporate ratio rounding, nurse/midwife in charge counts, and small hospital minimums. Assess workforce supply and recruitment strategies to meet increased shift requirements, and adjust budgets accordingly.

13. Prepare for dispute escalation. Understand that local disputes must be resolved in good faith and in a timely manner (s 15(4)). If disputes cannot be resolved locally, a party may apply to SAET but the moratorium may prevent applications for two years after assent (Schedule 2 cl 2(1)). If an application to SAET is made, ensure the Chief Executive is notified within seven days (s 16(4)).

14. Evidence retention for civil penalty risk. Since civil penalty orders require proof of a deliberate and systematic pattern, retain documents evidencing staffing decisions, budgets, rostering constraints, and communications that demonstrate either the absence or presence of policy-driven conduct. Be aware that proof of express, tacit or implied authorisation will be taken as proof of deliberation (s 17(3)).

15. Budget and procurement planning. Anticipate the fiscal impact of transitioning to the statutory ratios, including the rounding rule and single-nurse-per-patient requirements such as in birthing suites (Schedule 1 cl 7(1)). Identify where funding must be allocated and whether staffing can be absorbed into existing budgets or will require new appropriation. There is no funding mechanism in the Act.

16. Small and rural hospital contingencies. For small hospitals and Category 3 or 4 sites, evaluate recruiting and rostering pathways to meet the Schedule 1 minima and consider use of agency or temporary staff only with robust governance given the Act’s reporting and enforcement framework.

17. Governance and audit. Implement internal audit to test compliance with ratios, mixed ward nominations, emergency determinations and reporting. Establish a governance sign-off for each roster cycle that certifies compliance with the statutory ratios and records the basis for any deviation, including an emergency determination with union notification.

Practical note on the moratorium: While the moratorium delays SAET and court applications for two years (Schedule 2 cl 2(1)-(2)), it does not remove the need to comply with the Act’s obligations where the Act is commenced. Hospitals must act in good faith to comply during the moratorium (Schedule 2 cl 2(4)) and should therefore implement the compliance steps above from commencement.

This practical compliance programme should be read alongside the Act’s definitions and the detailed ratios in Schedule 1 Part 2 and minimum staffing rules in Part 3. Legal advice should be sought before entering any agreement to vary a ratio, before making emergency determinations under s 9, and when interpreting interactions with any higher requirements preserved from a relevant enterprise agreement under s 14.