1 Fair Work Act 2009 s.185 - Application for approval of a single-enterprise agreement St Vincent’s Private Hospitals Ltd Trading AS St Vincent’s Private Hospital Melbourne (AG2026/855) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 25 JUNE 2026 Application for approval of the St Vincent’s Health Australia (Queensland Private Hospitals) Health Professionals Enterprise Agreement 2025 – whether casual employees employed at the time –employees employed at the time who will be covered by the agreement not given opportunity to vote – application dismissed. Introduction [1] St Vincent’s Private Hospitals Ltd has made an application for approval of an enterprise agreement known as the St Vincent’s Health Australia (Queensland Private Hospitals) Health Professionals Enterprise Agreement 2025 pursuant to s 185 of the Fair Work Act 2009. The Agreement is a single enterprise agreement. [2] The Australian Municipal, Administrative, Clerical and Services Union Queensland Together Branch is a bargaining representative for the Agreement. The ASU opposes the application for approval of the Agreement. [3] On 24 June 2026, I conducted a hearing, by video conference, in relation to the application for approval of the Agreement. At the hearing, the parties addressed the following three issues in dispute: (a) whether the consultation clause in the Agreement complies with s 205 of the Act; (b) whether the Agreement passes the better off overall test; and (c) whether all eligible casual employees were given an opportunity to vote on the Agreement. [4] I only need to determine the third of these issues. Casual employees entitlement to vote [2026] FWC 2348 DECISION [2026] FWC 2348 2 [5] I agree with Deputy President Slevin’s summary of the relevant principles in Dof Subsea Australia Pty Ltd:1 “[46] It appears from the cases that casual employees can vote on a proposed enterprise agreement if they are employed at the time of the request to approve the agreement, as specified in section 181(1). This includes casual employees who have accepted ongoing employment for a project, even if they are not working on the specific day of the vote or during the access period if they are considered employed during the access period. Casual employees who are engaged on an ongoing basis or have been allocated shifts on a roster during the access period are eligible to vote. However, casual employees who are merely "on the books" without current shifts or ongoing engagement are not considered employed at the time for voting purposes.” Relevant facts [6] The Agreement covers allied health professionals employed by St Vincent’s at its three private hospitals in Queensland: St Vincent’s Private Hospital Northside, St Vincent’s Private Hospital Brisbane, and St Vincent’s Private Hospital Toowoomba (collectively, the Facilities). The Agreement does not cover nurses, administration or managerial employees, or employees engage in allied support services. [7] St Vincent’s engages allied health professionals on a casual basis across the Facilities to meet fluctuating clinical demand. [8] 12 to 26 March 2026 was the ‘notional access period’ for the Agreement. St Vincent’s sought input from bargaining representatives before determining the length of the notional access period for the Agreement. [9] During the notional access period, St Vincent’s provided relevant information to its employees about the Agreement. Because the notional access period was shortly before Easter, it took place when there was a period of lower activity for some departments in the Facilities, with the result that fewer casual employees worked during the notional access period than at other times of the year. [10] Employees determined by St Vincent’s as eligible to vote were given an opportunity to vote on the Agreement in the period between 9am on 27 March 2026 and 4pm on 2 April 2026. [11] 135 employees cast a valid vote and 74 of these employees voted to approve the Agreement. [12] During the notional access period, St Vincent’s casual workforce across the three Facilities comprised 78 employees, 42 of whom worked at least one shift during the notional access period and 36 of whom did not do any work for St Vincent’s during the notional access period. There is no dispute between the parties, and I am satisfied on the evidence before the Commission, that all 78 of these casual employees were casual employees within the meaning of s 15A of the Act. [13] St Vincent’s took the view that only the 42 casual employees who worked at least one shift during the notional access period were entitled to vote on the Agreement and the 36 [2026] FWC 2348 3 employees who did not do any work for St Vincent’s during the notional access period were not entitled to vote on the Agreement. [14] The ASU contends that 15 casual employees from the physiotherapy team at St Vincent’s Northside who did not work during the notional access period, as well as potentially others among the 36 excluded casual employees, were employed at the relevant time and should have been given an opportunity to vote on the Agreement. [15] Mr Alex Eaton, a physiotherapist and team leader employed by St Vincent’s to work at St Vincent’s Private Hospital Northside, gave unchallenged evidence,2 which I accept, that: (a) as at 18 June 2026, there were 47 physiotherapists working for St Vincent’s at St Vincent’s Private Hospital Northside, comprised of one full time employee (Mr Eaton), 15 part time employees, and 31 casual employees, all of whom commenced direct employment with St Vincent’s between 2014 and 2024; (b) the casual physiotherapists at St Vincent’s Private Hospital Northside work in a variety of ways from rostered shifts several times a week, fortnight, month or every few months. These casual physiotherapists are very important members of the physiotherapy team and are integral to the quality of service provided to patients, all of whom are inpatients at St Vincent’s Private Hospital Northside; (c) the physiotherapy team roster at St Vincent’s Private Hospital Northside has a weekend roster projected 12 months in advance. 60% of casual physiotherapists who work at St Vincent’s Private Hospital Northside are on this weekend roster; (d) the Monday to Friday physiotherapy roster for all staff including casuals is posted up to four months in advance; and (e) there were 29 casual physiotherapists in Mr Eaton’s team during the notional access period from 12 to 26 March 2026. 15 of these casual employees were not given an opportunity to vote on the Agreement because they did not work at St Vincent’s Private Hospital Northside during the notional access period. [16] Annexure 3 to Mr Eaton’s statement shows, in summary, the information in the first four columns of the table below in relation to the 15 casual physiotherapists who were not given an opportunity to vote on the Agreement. The information in the final column of the table below is taken from annexure AM-1 to the witness statement of Ms Amanda Markie, Senior People Partner, who, like Mr Eaton, was not required for cross examination. [2026] FWC 2348 4 Employee number Commencement date Shift before notional access period Shift after notional access period Number of shifts worked in 12 months prior to 4 June 2026 1 1 June 2015 1 March 2026 21 June 2026 3 2 11 February 2019 22 February 2026 28 March 2026 17 3 10 October 2023 8 March 2026 2 May 2026 38 4 2 March 2015 8 March 2026 2 May 2026 8 53 6 March 2017 1 June 2025 10 June 2026 0 6 18 March 2019 1 March 2026 28 March 2026 18 7 23 November 2020 22 February 2026 18 April 2026 20 8 7 November 2023 8 March 2026 3 April 2026 23 9 27 March 2015 25 January 2026 6 June 2026 21 10 27 March 2023 14 December 2025 3 April 2026 16 11 24 April 2023 1 February 2026 28 March 2026 15 12 7 May 2024 8 March 2026 2 May 2026 19 13 12 November 2018 1 March 2026 29 March 2026 11 144 7 May 2019 30 July 2025 N/A 2 15 23 November 2020 8 March 2026 28 March 2026 20 [17] No evidence was adduced from either St Vincent’s or the ASU about the other 21 casual employees5 who were not given an opportunity to vote on the basis that they did not work for St Vincent’s during the notional access period. Consideration [18] Save for the employees given numbers 5, 9, 10 and 14 in the table shown in paragraph [16] above, I am satisfied that the other 11 casual employees referred to in that table were employed on an ongoing basis and therefore entitled to vote on the Agreement. So much is clear from the fact that those casual employees were, at the time of the notional access period, long term casuals who worked shifts reasonably close in time prior to and after the notional access period and they worked in a department where a Monday to Friday physiotherapy roster for all staff including casuals was posted up to four months in advance, as well as a weekend roster (covering 60% of casuals) which projected weekend shifts 12 months in advance. This evidence demonstrates the actuality and currency of their casual employment during the notional access period. The evidence also establishes to my satisfaction that these casual employees were not just casuals ‘on the books’ who might or might not have been given further shifts.6 [19] In addition, I am not satisfied that St Vincent’s has met its evidentiary onus to establish that the other 21 excluded casual employees7 were not employed at the relevant time and therefore not entitled to vote on the Agreement. The status of those casual employees was squarely addressed in the submissions filed by the ASU before the hearing on 24 June 2026.8 These submissions were made after I invited the parties, by email sent from my chambers to St Vincent’s and the ASU on 1 June 2026, to file “submissions and potentially evidence on which casual employees were entitled to vote on the Agreement and whether such casual employees [2026] FWC 2348 5 are ‘ongoing casuals’”. Notwithstanding this, St Vincent’s did not adduce any evidence about the arrangements or shifts worked by these 21 excluded casual employees on either side of the notional access period. Instead, St Vincent’s relied on its contention that only casual employees who worked during the notional access period had an entitlement to vote on the Agreement. [20] Because St Vincent’s did not allow casual employees who were “employed at the time” to vote on the Agreement, I am not satisfied that St Vincent’s request to employees to vote on the Agreement was in accordance with s 181(1) of the Act. It follows that St Vincent’s did not ask its employees who will be covered by the Agreement to “approve the agreement under subsection 181(1)”, with the result that I am not satisfied that the Agreement was “made” in accordance with s 182(1) of the Act. These errors were material because the failure to ensure all casual employees who were employed at the relevant time had an opportunity to vote on the Agreement was capable of affecting the outcome of the vote, which succeeded on a relatively small margin. For these reasons, I am not satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement (s 186(2)(a) of the Act). In forming this state of satisfaction about genuine agreement, I have taken into account the statement of principles made by the Commission under s 188B of the Act. [21] I do not accept St Vincent’s contention that identification of the eligible casual cohort by reference to engagement during an extended notional access period was, at worst, a procedural error made in the application of unsettled law, in circumstances the Full Bench in Southern Cross University9 described as marked by “somewhat discordant” authority. Section 188(5)(c) of the Act permits the Commission, when determining whether an agreement has been genuinely agreed to by the employees covered by it, to disregard minor procedural or technical errors made in relation to s 182(1) if it is satisfied that the employees were not likely to have been disadvantaged by the errors. For the reasons explained by Deputy President Slevin in Dof Subsea10 and the Full Bench in McColl’s Operations Pty Ltd v TWU,11 I do not consider that the omission of a significant number of eligible casual employees from the ability to vote on the Agreement was a minor error. In addition, I am not satisfied that the employees were not likely to have been disadvantaged by the error of wrongfully excluding casual employees from voting on the Agreement. The outcome of the vote could have been different if all casual employees employed at the relevant time were given an opportunity to vote on the Agreement. Further, employees were also disadvantaged because the exclusion of a cohort of eligible voters from the vote also had the capacity to prevent or limit the ability of those employees to influence the views of other employees about the merits or otherwise of the Agreement. Conclusion [22] For the reasons given, the application for approval of the Agreement is dismissed. [2026] FWC 2348 6 DEPUTY PRESIDENT Appearances K Paull of the Applicant H Dalton-Bridges of the Australian Municipal, Administrative, Clerical and Services Union Hearing Details Newcastle 25 June 2026 By video using Microsoft Teams Printed by authority of the Commonwealth Government Printer <PR811355> 1 [2025] FWC 749. See also Monadelphous Engineering Pty Ltd [2025] FWCA 1123; Peregian Beach Community College Ltd [2025] FWC 3702 and Woolworths Group Limited [2024] FWCFB 314 at [27] 2 Ex 10 (statement of Mr Eaton dated 18 June 2026) 3 Employee was on maternity leave 4 Employee had long term injury 5 36 excluded casual employees – 15 excluded casual physiotherapists in Mr Eaton’s team = 21 other excluded casuals 6 Woolworths Group Limited [2024] FWCFB 314 at [27] 7 36 excluded casual employees – 15 excluded casual physiotherapists in Mr Eaton’s team = 21 other excluded casuals 8 ASU’s submissions filed on 19 June 2026 at [2] and [44]-[45] 9 [2023] FWCFB 200 at [19] 10 at [68]-[71] 11 [2022] FWCFB 212 at [49]