1 Fair Work Act 2009 s.236 - Application for a majority support determination Australian Nursing and Midwifery Federation (B2024/1695) DEPUTY PRESIDENT ROBERTS SYDNEY, 20 FEBRUARY 2025 Application for a majority support determination [1] On 23 December 2024 the Australian Nursing and Midwifery Federation (NSW Branch) (ANMF) applied under s.236 of the Fair Work Act 2009 (Cth) (Act) for a determination (majority support determination) that a majority of employees who will be covered by a proposed agreement with St Vincent de Paul Society (NSW) (SVP or Respondent) want to bargain with the Respondent. [2] The proposed determination would trigger the commencement of bargaining for an agreement that would cover nurses employed by the Respondent at the Matthew Talbot Hostel for Homeless Men in Sydney. At present, there are 6 employees who are employed by the Respondent as registered nurses, clinical nurse specialists and a clinical nurse consultant at those premises. Those employees have each signed a petition indicating that they wish to commence bargaining with the Respondent for a new enterprise agreement. A copy of that petition was filed in support of the application. [3] Section 237(1) of the Act provides that the Fair Work Commission (Commission) must make a majority support determination in relation to a proposed single-enterprise agreement if an application for a determination has been made and the Commission is satisfied of the matters set out in s.237(2) in relation to the agreement. [4] Section 237(2) provides: Matters of which the FWC must be satisfied before making a majority support determination (2) The FWC must be satisfied that: (a) a majority of the employees: (i) who are employed by the employer or employers at a time determined by the FWC; and (ii) who will be covered by the agreement; [2025] FWC 518 DECISION [2025] FWC 518 2 want to bargain; and (b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and (c) the group of employees who will be covered by the agreement was fairly chosen; and (d) it is reasonable in all the circumstances to make the determination. [5] The Respondent did not contend that the Commission could not be satisfied of the matters referred to in s.237(2)(a) to (c). The application was resisted on the basis that the Commission could not be satisfied that it is reasonable in all the circumstances to make the determination. [6] The parties agreed that the matter could be determined on the papers. Background [7] At the time of the filing of the application, the employees who would be covered by the proposed agreement were covered by an agreement called Nurses Matthew Talbot Hostel Society of St Vincent de Paul Enterprise Agreement (1999 Agreement). That agreement was originally approved in August 1999 under s.35 of the Industrial Relations Act 1996 (NSW). Thereafter it became a Division 2B State employment agreement for the purposes of item 5 of Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) and continued in operation in accordance with that Act. [8] In 2023 the ANMF successfully applied for an extension of the default period for the 1999 Agreement. That agreement would have otherwise automatically ceased to operate on 6 December 2023 by virtue of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. On 4 June 2024 a Full Bench of the Commission1 extended the default period of the 1999 Agreement until 31 December 2024 (the extension decision). The 1999 Agreement has since ceased to operate. [9] The Full Bench decision to extend the default period of the 1999 Agreement sets out the history of the arrangements that had been in place and the interaction between the 1999 Agreement and other awards referred to in that Agreement. The provisions of the 1999 Agreement were somewhat unusual in that it provided that conditions of employment were those provided for by a since superseded state award called the Nurses &c other than Hospitals (State) Award and that rates of pay were to be equivalent to those paid under another state award called the Public Hospital Nurses (State) Award, an award which has also apparently been superseded by another state award, the Public Health System Nurses and Midwives (State) Award (the state award). Is it reasonable in all the circumstances to make the determination? [10] The Respondent submitted that it was not reasonable in all the circumstances to make the majority support determination because there was uncertainty surrounding enterprise [2025] FWC 518 3 agreement negotiations and associated pay outcomes while the Nurses and Midwives Work Value Case (AM2024/11) was being determined by the Commission and before the Commonwealth funding response had been provided following a decision in that matter. The Respondent said that it was “impossible to cost” any pay increases for an agreement made prior to a decision in the Work Value case and that it was sensible that negotiations not occur while the case remained on foot. They said that there was the potential that pay rates might be increased significantly more than what was negotiated in an agreement and that this created uncertainty. [11] Further, the Respondent submitted that because the 1999 Agreement governed wages only and other conditions were regulated by the Nurses Award 2020, any proposed agreement would be the first complete enterprise agreement covering all employment conditions and replacing the Nurses Award 2020. The Respondent said it was clear that the ANMF’s intention was to seek an agreement that provided for similar rates and conditions as the state award and that the classifications in that award did not correlate with the operations and staff duties at the Matthew Talbot clinic. They said this was a factor that weighed against a conclusion that it was reasonable in all the circumstances to make the determination. [12] The Respondent also argued that it was not reasonable to make a determination when the outcome of the current dispute with the NSW Government over pay rates was unknown. They also argued that the very small cohort of 6 employees in a workforce of approximately 1,400 people made negotiations for an agreement impractical from an operational and administrative perspective and that considerable resources would be needed to conclude a comprehensive agreement. Reference was made to the Full Bench decision in Loram Pty Ltd v. Australian Rail Tram and Bus Industry Union2 where the Bench considered on appeal an argument as to whether a particular cohort had been fairly chosen for the purposes of s.237(2)(c). [13] The Applicant contended that if a determination is made, the terms of any proposed agreement, including pay and conditions is a matter that is within the control of the Respondent. Further, the Applicant said that while the Respondent was, as a matter of practice, paying rates that were above state award rates, the underlying legal protection for those rates had been removed now that the 1999 Agreement no longer applied and that the legal minimum was now that provided for in the modern award, the Nurses Award 2020. [14] The Applicant said that the classifications and duties set in any proposed agreement was a matter for bargaining and something that the Respondent could influence. They said that bargaining would present an opportunity for the Respondent to more closely match the terms of any agreement to the particular operational circumstances of the clinic. The Applicant said in determining whether it was reasonable in all the circumstances to make a determination regard, should be had to the objects of the Act and in particular s.3(f) which refers to “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.” [15] I am not persuaded to accept the objections raised by the Respondent. I consider it to be reasonable to make the determination notwithstanding that there are other award-related proceedings on foot that are not yet finally determined. Whilst this is likely to have an impact [2025] FWC 518 4 on the terms of an underpinning award, I do not consider that it presents a reason as to why parties should not be able to avail themselves of the bargaining apparatus provided for in the Act. The parties would undoubtedly take the proceedings into account in the negotiation process along with other factors the outcome of which is not presently known. There are also matters that are known to the parties which I expect would be considered in the course of bargaining. I note for example the Full Bench’s observation3 in the extension decision that the rates of pay being provided to the relevant employees were between 29 and 40 percent higher than the modern award. Section 206 of the Act deals with the situation in which base rates of pay under an enterprise agreement are less than those provided for in a relevant modern award. The latter provision means that an enterprise agreement cannot operate to provide for base rates of pay that are less than those provided for in the relevant modern award. This would apply irrespective of the outcome of the negotiations or the Work Value case. [16] I also accept the submissions of the Applicant that some other issues raised by the Respondent as reasons why the Commission could not be satisfied that it was reasonable to make the determination are also matters that are properly the subject of bargaining. For example, even if the Applicant were to pursue a claim for an agreement that reflects the terms of the state award, it is equally open for the Respondent to reject such a claim and/or seek to conclude an agreement with rates and classifications that they consider more closely align with the Respondent’s operations. [17] As to the relatively small cohort of employees that the application relates to, I note that the Respondent did not advance an argument that the group to be covered by the agreement was not fairly chosen. The Respondent simply said that a bargaining process would be burdensome. They also accepted that in some respects, such as communication during the bargaining process, a smaller cohort made the process easier than it might otherwise be. As the Full Bench in Loram pointed out, the Act clearly contemplates the possibility of bargaining and agreement-making for as few as 2 employees. Whilst I accept that the number of employees and the administrative cost of bargaining for a relatively small number is a factor to be taken into account, I do not think that this and the other matters put by the Respondent results in an overall conclusion that it is not reasonable to issue the determination. [18] I have also taken into account the fact that given the rather unusual history of industrial regulation including, most recently, the sunsetting of the 1999 Agreement, it is reasonable for the ANMF and the employees to pursue a contemporary agreement to consolidate those terms into a single instrument that reflects the circumstances of the particular workplace. I conclude that it is reasonable in all the circumstances to make the determination [19] I have also considered the remaining matters in s.237(2)(a) to (c) and am satisfied in each case that the requirements of those subsections have been met. I determine that a majority of the persons employed at the time of the signing of the petition want to bargain. For the purposes of s.237(2)(c) I have taken into account whether the group of employees is geographically, operationally or organisationally distinct and consider that they are operationally distinct. [20] I propose to issue a majority support determination which, in accordance with s.237(4), will take effect from today’s date. [2025] FWC 518 5 DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR784590> 1 [2024] FWCFB 276. 2 [2024] FWCFB 433. 3 Op cit at [23].