1 Fair Work Act 2009 s.472 - Application for an order relating to certain partial work bans Australian Nursing and Midwifery Federation v Healthscope Operations Pty Ltd (B2024/1642) COMMISSIONER P RYAN SYDNEY, 3 JULY 2026 Application for an order relating to certain partial work bans – protected industrial action – notice of intention to reduce payments – whether valid notices were issued – the Commission’s discretion to vary the proportion by which payments are reduced – reasonableness of calculations under Regulation 3.21 of the Fair Work Regulations 2009 – consideration of fairness between the parties – proportions varied Introduction [1] This decision concerns an application by the Australian Nursing and Midwifery Federation (ANMF) under s.472 of the Fair Work Act 2009 (Cth) (FW Act) for an order in relation to certain partial work bans at seven hospitals operated by Healthscope Operations Pty Ltd (Healthscope). [2] Healthscope has given notice to the employees of a reduction in their payments if they engage in the partial work bans. [3] The ANMF seeks an order that varies the proportion by which the employee’s payments are reduced to zero on the basis that the notices issued under s.471 of the FW Act are not valid or, in the alternative, the proportions specified in the notices are not fair and reasonable having regard to ss.472(3)(a) and 472(3)(b). [4] There is no dispute that the ANMF is a bargaining representative and has standing to make the application on behalf of the employees. The matter was heard before me on 4 March 2025. I exercised my discretion to grant permission to Healthscope to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The ANMF was represented by its Industrial Officer, Mr C Smith. Healthscope was represented by Mr G Fredericks of counsel. Evidence and Materials before the Commission [5] Witness statements were tendered from the following persons, who each gave evidence at the hearing: [2026] FWC 2534 DECISION [2026] FWC 2534 2 • Fiona Deegan, employed by the NSW Branch of the ANMF as an Organiser (Exhibit A1) and (Exhibit A2); • Sheridan Brady, employed by Healthscope at the Northern Beaches Hospital as a Registered Nurse in the Intensive Care Unit. Ms Brady is also the President of the Northern Beaches Hospital Branch of the NSW Branch of the ANMF (Exhibit A3) and (Exhibit A4); • Sarah Keevers, employed by Healthscope at the Norwest Private Hospital as a Registered Nurse (Scrub/Scout). Ms Keevers is also the Secretary of the Norwest Private Hospital Branch of the NSW Branch of the ANMF (Exhibit A5); • Felicity Melville, employed by Healthscope at the Northern Beaches Hospital as a Ward Steward for the Emergency Department. Ms Melville is also the Alternate Union Delegate for the Northern Beaches Hospital (Exhibit A6); • Caroline Renike, employed by Healthscope as a Registered Midwife in the Birthing Unit at the Northern Beaches Hospital. Ms Renike is also the Secretary and Delegate for the Northern Beaches Hospital Branch of the NSW Branch of the ANMF (Exhibit A7); • Leonie Lloyd, employed by Healthscope as Business Partner – Operations (Exhibit R1); and • Fiona Allsop, employed by Healthscope at the Northern Beaches Hospital as Director of Nursing (Exhibit R3). [6] The following documents were admitted into evidence: • Document titled “Notice under section 471 of the Fair Work Act 2009” on Healthscope Letterhead dated 13 December 2024 (formerly MFI 1) (Exhibit R2); [7] The following documents were marked for identification: • Document titled “Notice under section 471 of the Fair Work Act 2009” on Healthscope Letterhead dated 13 December 2024 (MFI 1); • Aide-Memoire prepared by Healthscope titled “Comparison of positions regarding time” (MFI 2); and • A3 Copy of annexure LL-01to Exhibit R1 (MFI 3). Relevant Factual Background [8] On 18 October 2024, the Commission made a protected action ballot order (PABO) in relation to Healthscope’s employees who are members of the ANMF. Voting in the protected [2026] FWC 2534 3 action ballot closed on 28 October 2024, with ANMF members voting in favour of taking protected action. [9] Relevantly, questions 9 and 11 on the PABO stated: 9. A ban on the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications, including but not limited to responding to emails, answering telephone calls, cleaning, emptying bins, moving/washing/cleaning/making/stripping beds, and food or drink service? … 11. A ban on the processing and/or completion of any data entry or auditing, forms, paperwork, and/or stickers that are not essential to the provision of patient care, including but not limited to charge sheets, chargeable items forms, and RFID stickers? [10] On 4 December 2024, the ANMF notified Healthscope of the following proposed protected action: We notify of protected action as follows: 1. From 6:00am on Tuesday 10 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications. Specifically, ANMF NSW Branch members will ban: a. The performance of any cleaning, dusting, washing, or mopping duties that do not require disinfection, do not occur in an isolation block, and/or do not form part of a nurse or midwife’s scope of practice as expressed in relevant professional standards (e.g., ACORN Standards); and b. The pushing and/or moving of beds; and c. The moving and/or carrying of patient bags/luggage; and d. The emptying of linen skips and/or bins; and e. The provision of catering services; and f. The answering of phones that are not carried by the Floor Manager/Nurse or Midwife in Charge; and g. Attending to door buzzers in closed wards/units. Employees who will be covered by the proposed Enterprise Agreement and who are members of and are represented by of the ANMF NSW Branch will take the abovementioned protected action in the following health facilities operated by Healthscope: 1. Campbelltown Private Hospital; and 2. Lady Davidson Private Hospital; and 3. Nepean Private Hospital; and 4. Newcastle Private Hospital; and 5. Northern Beaches Hospital; and 6. Norwest Private Hospital; and 7. Sydney Southwest Private Hospital. [2026] FWC 2534 4 While the ANMF NSW Branch’s members are taking protected action, their professional obligations to patients remain and the ANMF NSW Branch will constructively work with Healthscope to address any concerns about the above matters, and above all to ensure the provision of safe patient care. (Emphasis in original) [11] On 9 December 2024, the ANMF notified Healthscope of the following proposed protected action: We notify of protected action as follows: 1. From 6:00am on Friday 13 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications. Specifically, in addition to those tasks already notified in Item 1 of our correspondence on 4 December 2024, the ANMF NSW Branch members will ban: a. The stripping, cleaning, and/or making of beds. Employees who will be covered by the proposed Enterprise Agreement and who are members of and are represented by of the ANMF NSW Branch will take the abovementioned protected action in the following health facilities operated by Healthscope: 1. Campbelltown Private Hospital; and 2. Lady Davidson Private Hospital; and 3. Nepean Private Hospital; and 4. Newcastle Private Hospital; and 5. Northern Beaches Hospital; and 6. Norwest Private Hospital; and 7. Sydney Southwest Private Hospital. While the ANMF NSW Branch’s members are taking protected action, their professional obligations to patients remain and the ANMF NSW Branch will constructively work with Healthscope to address any concerns about the above matters, and above all to ensure the provision of safe patient care. (Emphasis in original) [12] On 9 December 2024, the ANMF also notified Healthscope of proposed protected action in relation to the processing and/or completion of data entry, forms and paperwork at various hospitals. The notifications varied for each hospital. The relevant part of each notification is extracted as follows: 1. Campbelltown Private Hospital: From 6:00am on Friday 13 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the processing and/or completion of the following data entry, forms, and paperwork: [2026] FWC 2534 5 a. Recording of chargeable items on the Implanted/Explanted Items Record; and b. Any data entry in Tech1 that is administrative in nature and is capable of completion by other classifications. 2. Nepean Private Hospital: From 6:00am on Friday 13 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the processing and/or completion of the following data entry, forms, and paperwork: a. Any data entry in Tech1 that is administrative in nature and is capable of completion by other classifications; and b. Any data entry in webPAS, including but not limited to admissions, transfers, discharges, and operating theatre times/minutes, that is administrative in nature and is capable of completion by other classifications. 3. Northern Beaches Hospital: From 6:00am on Friday 13 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the processing and/or completion of the following data entry, forms, and paperwork: a. Any data entry in Tech1 that is administrative in nature and is capable of completion by other classifications; and b. Any data entry in webPAS, including but not limited to admissions, transfers, discharges, and operating theatre times/minutes, that is administrative in nature and is capable of completion by other classifications (e.g., Ward Clerks); and c. Intentional Rounding – We Care Plan form (Maternity Services Department only); and d. Emergency Department Approved Protocol form. 4. Norwest Private Hospital: From 6:00am on Friday 13 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the processing and/or completion of the following data entry, forms, and paperwork: a. All prosthetic items forms (however described); and b. Photocopying of any forms, including: i. Theatre Utilisation forms; and ii. Prosthetic items forms; and iii. Operation Reports; and c. Any data entry in webPAS, including but not limited to admissions, transfers, discharges, and operating theatre times/minutes, that is administrative in nature and is capable of completion by other classifications. 5. Sydney Southwest Private Hospital From 6:00am on Friday 13 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the processing and/or completion of the following data entry, forms, and paperwork: [2026] FWC 2534 6 a. All prosthetic items forms (however described); and b. All chargeable items forms (however described); and c. Opened and Not Used forms; and d. Prosthesis/Consumables Used forms; and e. Any data entry in Tech1 that is administrative in nature and is capable of completion by other classifications; and f. Any data entry in webPAS, including but not limited to admissions, transfers, discharges, and operating theatre times/minutes, that is administrative in nature and is capable of completion by other classifications. [13] On 9 December 2024, Healthscope issued notices under s.471 of the FW Act to its employees at each of the relevant hospitals. After issuing those notices, Healthscope became aware of errors in the proportions specified in the notices. Healthscope did not reduce any employee payments under the notices issued on 9 December 2024. [14] On 12 December 2024, Healthscope issued new notices under s.471 of the FW Act to its employees at each of the relevant hospitals (12 December Notices). While there was some variation in relation to the data entry, forms and paperwork ban to reflect the variations in the notifications issued by the ANMF, the following is an example of one of the 12 December Notices issued by Healthscope: DELIVERY BY EMAIL Dear Employees Notice under s 471 of the Fair Work Act 2009 (Cth) The Australian Nursing and Midwifery Foundation (NSW Branch) (ANMF) has notified Healthscope that its members working at Campbelltown Private Hospital will engage in the following forms of industrial action. 1. From 6am on Tuesday 10 December 2024 and for an indefinite period, members will “ban the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications” (Non-Clinical Duties Ban). The ANMF advised that as part of the Non-Clinical Duties Ban, its members will specifically ban: i. the performance of any cleaning, dusting, washing, or mopping duties that do not require disinfection, do not occur in an isolation block, and/or do not form part of a nurse or midwife’s scope of practice as expressed in relevant professional standards (e.g., ACORN Standards); and ii. the pushing and/or moving of beds; and iii. the moving and/or carrying of patient bags/luggage; and iv. the emptying of linen skips and/or bins; and v. the provision of catering services; and vi. the answering of phones that are not carried by the Floor Manager/Nurse or Midwife In Charge; and vii. attending to door buzzers in closed wards/units; and viii. the stripping, cleaning and/or making of beds (from 6am on Friday 13 December 2024 and for an indefinite period). [2026] FWC 2534 7 2. From 6am on Friday 13 December 2024 and for an indefinite period, members will “ban the processing and/or completion of the following data entry, forms, and paperwork: a. Recording of chargeable items on the Implanted/Explanted Items Record; and b. Any data entry in Tech1 that is administrative in nature and is capable of completion by other classifications”, (Data Entry Ban). Each of these notified forms of industrial action is a partial work ban, as defined in section 470(3) of the Fair Work Act 2009 (Cth). Not participating? please let us know We understand that a majority of you are not members of the ANMF and you will therefore not be participating in the Non-Clinical Duties Ban or Data Entry Ban. Some of you may be ANMF members who do not wish to participate in the Non-Clinical Duties Ban or Data Entry Ban. The remainder of this letter sets out the process that we will take in respect of employees participating in the Non-Clinical Duties Ban and/or the Data Entry Ban. If you are not participating, the remainder of this letter will not apply to you. Partial work ban - notice of reduction in payment Section 471(1) of the Fair Work Act provides for a type of notice that an employer can provide to an employee who participates in a partial work ban. You are hereby notified that if you are a member of the ANMF and you engage in: • the Non-Clinical Duties Ban, Healthscope will reduce your payments by the proportion set out in the annexure for each day you engage in the Non-Clinical Duties Ban. The basis for the reduction is Healthscope’s estimate of the usual time that you/other employees in your role would spend during a day engaging in the work that is the subject of the Non- Clinical Duties Ban; • the Data Entry Ban, Healthscope will reduce your payments by the proportion set out in the annexure for each day you engage in the Data Entry Ban. The basis for the reduction is Healthscope’s estimate of the usual time that you/ other employees in your role would spend during a day engaging in the work that is the subject of the Data Entry Ban. This notice will take effect from the later of: • the start of the first day of the partial work ban; or • the start of the first day after the date of this notice, if you perform work on that day. This notice will cease to have effect at the end of the day on which the partial work ban ceases. Please note that this notice operates to replace the notice provided to you on 9 December 2024. We confirm that Healthscope will not be making any deductions to pay under the 9 December 2024 notice. Industrial Action – General [2026] FWC 2534 8 Finally, Healthscope wants to make clear that it recognises and respects the right of ANMF members to participate in protected industrial action. However, we note that no employee is required or expected to partake in industrial action, nor can you be pressured to participate in industrial action if you do not wish to do so. We take this opportunity to advise all employees that during this, and indeed all, periods of protected industrial action, employees are expected to conduct themselves in accordance with Healthscope’s Code of Conduct and our Safe Values. Any acts of harassment, intimidation, bullying or other threatening behaviour will be, as always, taken seriously and may result in disciplinary action up to and including termination of employment. (Emphasis in original) [15] The annexure to each of the 12 December Notices sets out in tabular form the proportion by which the employee payments were to be reduced. The proportion varies depending upon the hospital, the department/work area within that hospital, the estimated time that is usually spent performing the non-clinical duties and data entry duties, and the length of the shift worked in that department/work area. Collectively, the 12 December Notices specified 202 different proportions,1 72 of which are in dispute. The following extract is an example of the annexure to the notice issued to employees at the Northern Beaches Hospital: Non-Clinical Duties Ban Data Entry Ban Area Role Estimate time per shift (minutes) % Deduction Estimate time per shift (minutes) % Deduction OPD Dialysis 33 6.88% 0 0.00% [16] Healthscope subsequently identified errors in the 12 December Notice issued to employees at the Northern Beaches Hospital. Healthscope contends that a further amended s.471 notice was issued to employees at the Northern Beaches Hospital on 13 December 2024 (13 December Notice). However, there is no evidence that the 13 December Notice was issued to employees at the Northern Beaches Hospital. Under cross examination, both Ms Renike and Ms Melville stated that they did not receive the 13 December Notice,2 and when Ms Lloyd was asked whether the 13 December Notice was issued, she stated that “all I can say for sure is that I know that the letters are just delivered via our communications specialist and I know they were asked to do so.”3 Having regard to that evidence, I am not satisfied, and I so find, that the 13 December Notice was not issued. The consequence of this is that the relevant s.471 notice issued to employees at the Northern Beaches Hospital is the 12 December Notice. [17] In addition to the errors identified above, the parties have identified errors in the estimated time or proportions specified for the non-clinical duties partial work ban for employees working in the following areas: • Campbelltown Private Hospital – Surgical Wards; 1 32 of the specified proportions are 0%. 2 Transcript at PN516-PN529; PN559-PN561. 3 Transcript at PN615-616. [2026] FWC 2534 9 • Lady Davidson Private Hospital – Rehab; and • Norwest Private Hospital – Cath Lab and Ortho Lab. [18] In determining the proportions set out in the 12 December Notices, Healthscope undertook ‘time in motion’ studies at each hospital. This involved observing how long it took employees to perform the relevant duties during a shift at each hospital. These observations were generally conducted over periods of about 1-2 hours. However, Ms Allsop stated that the nurse unit managers/midwife unit managers are familiar with the time that nurses and midwives spend undertaking the tasks, and therefore she did not specify a minimum period over which any observations were to take place. Additionally, Healthscope conducted various conference calls with general managers, directors of nursing, and senior managers/nurses, to discuss the methodology and whether the estimates were reasonable and accurate. Similarly, the ANMF deployed its NSW Branch officials to work with member employees at each of the hospitals to establish the average amount of time normally spent per shift on the relevant duties. This information was consolidated into tables annexed to the statement of Ms Deegan, along with information derived from the statements of the employee witnesses. [19] While there is some disagreement between the parties as to the time spent and what is fair and reasonable, in many cases the ANMF did not dispute Healthscope’s estimate, or where it did, the parties were not significantly apart.4 I will return to Healthscope’s proportions and whether they are fair and reasonable below. [20] Healthscope ultimately reduced payments for 33 employees across four hospitals as follows: Hospital Department Employees Campbelltown Private Hospital Theatre 2 Newcastle Private Hospital Cath Lab 3 CCU 6 Maternity 5 North Wing 1 Northern Beaches Hospital Dialysis 4 Sydney Southwest Private Hospital Theatre – anaesthetics 1 Theatre 11 Relevant Legislative Provisions [21] Section 472 of the FW Act provides as follows: 472 Orders by the FWC relating to certain partial work bans 4 See Document MFI 2; Transcript at PN190-PN222. [2026] FWC 2534 10 (1) The FWC may make an order varying the proportion by which an employee’s payments are reduced. (2) The FWC may make the order only if a person has applied for it under subsection (4). (3) In considering making such an order, the FWC must take into account: (a) whether the proportion specified in the notice given under paragraph 471(1)(c) was reasonable having regard to the nature and extent of the partial work ban to which the notice relates; and (b) fairness between the parties taking into consideration all the circumstances of the case. (4) An employee, or the employee’s bargaining representative, may apply to the FWC for an order under subsection (2) if a notice has been given under paragraph 471(1)(c) stating that the employee’s payments will be reduced. [22] Sub-sections 470(1)-(3) of the FW Act provide as follows: 470 Payments not to be made relating to certain periods of industrial action (1) If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day. Note: This subsection is a civil remedy provision (see Part 4-1). (2) However, this section does not apply to a partial work ban. Note: For payments relating to periods of partial work bans, see section 471. (3) A partial work ban is industrial action that is not: (a) a failure or refusal by an employee to attend for work; o (b) a failure or refusal by an employee who attends for work to perform any work at all; or (c) an overtime ban. [23] Section 471 of the FW Act provides as follows: 471 Payments relating to partial work bans Employer gives notice of reduction in payments (1) If: (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and (b) the industrial action is a partial work ban; and (c) the employer gives to the employee a written notice stating that, because of the ban, the employee’s payments will be reduced by a proportion specified in the notice; [2026] FWC 2534 11 then the employee’s payments are reduced in accordance with subsection (2) in relation to the period (the industrial action period) referred to in subsection (5). (2) The employee’s payments in relation to the industrial action period are reduced: (a) by the proportion specified in the notice; or (b) if the FWC has ordered a different proportion under section 472—by the proportion specified in the order; and the modern award, enterprise agreement or contract of employment that applies to the employee’s employment has effect accordingly. (3) The regulations may prescribe how the proportion referred to in paragraph (2)(a) is to be worked out. Employer gives notice of non-payment (4) If: (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and (b) the industrial action is a partial work ban; and (c) the employer gives to the employee a written notice stating that, because of the ban: (i) the employee will not be entitled to any payments; and (ii) the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties; then the employee is not entitled to any payments in relation to the period (the industrial action period) referred to in subsection (5). (4A) If: (a) an employer has given an employee a notice under paragraph (4)(c); and (b) the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period; then: (c) the failure or refusal is employee claim action, even if it does not satisfy subsections 409(2) and 413(4), if the related industrial action referred to in paragraph (4)(a) is employee claim action; or (d) the failure or refusal is employee response action, even if it does not satisfy subsection 413(4), if the related industrial action referred to in paragraph (4)(a) is employee response action. The industrial action period (5) The industrial action period is the period: (a) starting at the later of: [2026] FWC 2534 12 (i) the start of the first day on which the employee implemented the partial work ban; or (ii) the start of the next day, after the day on which the notice was given, on which the employee performs work; and (b) ending at the end of the day on which the ban ceases. Form and content of notice (6) The regulations may prescribe requirements relating to one or both of the following: (a) the form of a notice given under paragraph (1)(c) or (4)(c); (b) the content of such a notice. Manner of giving notice (7) Without limiting paragraph (1)(c) or (4)(c), the employer is taken to have given a notice in accordance with that paragraph to the employee if the employer: (a) has taken all reasonable steps to ensure that the employee, and the employee’s bargaining representative (if any), receives the notice; and (b) has complied with any requirements, relating to the giving of the notice, prescribed by the regulations. Employer does not give notice (8) If: (a) an employee engaged, or engages, in protected industrial action against an employer on a day; and (b) the industrial action is a partial work ban; and (c) the employer does not give the employee a notice in accordance with paragraph (1)(c) or (4)(c); then the employee’s payments for the day are not to be reduced because of the ban. [24] Section 19 of the FW Act defines industrial action as follows: 19 Meaning of industrial action (1) Industrial action means action of any of the following kinds: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; (d) the lockout of employees from their employment by the employer of the employees. [2026] FWC 2534 13 Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining. (2) However, industrial action does not include the following: (a) action by employees that is authorised or agreed to by the employer of the employees; (b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer; (c) action by an employee if: (i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform. (3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts. Note: In this section, employee and employer have their ordinary meanings (see section 11). [25] Regulation 3.21 of the Fair Work Regulations 2009 (FW Regulations) provides as follows: 3.21 Payments relating to partial work bans—working out proportion of reduction of employee’s payments For subsection 471(3) of the Act, the proportion mentioned in paragraph 471(2)(a) of the Act is worked out for an employee or a class of employees by carrying out the following steps. Step 1 Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform. Step 2 Estimate the usual time that the employee or the class of employees would spend performing the work during a day. Step 3 Work out the time estimated in Step 2 as a percentage of an employee’s usual hours of work for a day. The solution is the proportion by which the employee’s payment will be reduced for a day. [26] Regulation 3.22 of the FW Regulations provides as follows: 3.22 Payments relating to partial work bans—form of partial work ban notice For paragraph 471(6)(a) of the Act, a notice given under paragraph 471(1)(c) or (4)(c) of the Act about the reduction of an employee’s payments due to a partial work ban must be in a legible form and in English. [27] Regulation 3.23 of the FW Regulations provides as follows: [2026] FWC 2534 14 3.23 Payments relating to partial work bans—content of partial work ban notice (1) For paragraph 471(6)(b) of the Act, a notice about a partial work ban given to an employee under paragraph 471(1)(c) or (4)(c) of the Act must: (a) specify the day on which the notice is issued; and (b) specify the industrial action engaged in, or proposed to be engaged in, that constitutes the partial work ban; and (c) state that the notice will take effect from the later of: (i) the start of the first day of the partial work ban; and (ii) the start of the first day after the day on which the notice is given to the employee, if the employee performs work on that day; and (d) state that the notice will cease to have effect at the end of the day on which the partial work ban ceases. (2) If the notice is given under paragraph 471(1)(c) of the Act, it must also: (a) state that the employee’s payments will be reduced by an amount specified in the notice for each day the employee engages in the partial work ban; and (b) specify an estimate of the usual time the employer considers an employee would spend during a day performing the work that is the subject of the work ban; and (c) specify the amount by which the employee’s payments will be reduced for each day the employee engages in the work ban. (3) If the notice is given under paragraph 471(4)(c) of the Act, it must also state that the employee will not be entitled to any payment for a day on which the employee engages in the partial work ban. [28] Regulation 3.24 of the FW Regulations provides as follows: 3.24 Manner of giving notice about partial work ban (1) For paragraph 471(7)(b) of the Act, this regulation prescribes how the employer may give employees notice for paragraph 471(1)(c) or (4)(c) of the Act. (2) The employer may give the notice to the employee personally. (3) The employer may send the notice by pre-paid post to: (a) the employee’s residential address; or (b) a postal address nominated by the employee. (4) The employer may send the notice to: (a) the employee’s email address at work; or (b) another email address nominated by the employee. (5) The employer may fax the notice to: (a) the employee’s fax number at work; or (b) the employee’s fax number at home; or (c) another fax number nominated by the employee. [2026] FWC 2534 15 [29] In Transport Workers’ Union of Australia v Transit (NSW) Services Pty Ltd T/A Transit Systems5 (TWU v Transit Systems), Deputy President Easton set out the following summary of the relevant legislative provisions: [13] The relevant statutory provisions in relation to partial work bans can be summarised as follows: a. Employees can take industrial action by way of partial work bans (see s.19); b. Assuming that the necessary requirements are met, such action is protected industrial action; c. Employers are prohibited from making any payment for any day that an employee engages in protected industrial action (per s.470(1)) unless the protected action is a partial work ban as defined in s.470(3); d. Where an employee engages in a partial work ban the employer can elect to: i. continue to make payments in full; ii. by notice reduce the employee’s payment on such days (per s.471(1)(c)); or iii. by notice refuse to accept the performance of any work at all and not pay the employee at all (per s.471(4)). e. Where an employer elects to pay employees a proportional amount, s.471 imposes certain requirements; f. Where the requirements of s.471 are met “the modern award, enterprise agreement or contract of employment that applies to the employee’s employment has effect accordingly” (per s.471(2)); g. Whilst s.471 does not provide for the manner in which an employer determines the proportion by which payments can be reduced, regulation 3.21 prescribes the method by which the employer should approach this task; h. After an employer gives notice of its intention to reduce payments, an employee or an employee bargaining representative may make an application to the Commission to reduce the proportionate amount (per s.472); i. Upon application, and only upon application, the Commission must determine whether or not to vary the proportion; j. The Commission’s discretion is generally at large however the Commission is required to take into account the reasonableness of the proportion specified by the employer (per s.472(3)) and fairness between the parties (per s.472(3)(b)); k. where the Commission makes an order varying the employer’s specified proportion, “the modern award, enterprise agreement or contract of employment that applies to the employee’s employment has effect accordingly” (per s.471(2)); and l. an order made under s.472 cannot be varied or revoked by the Commission (s.603(3)(g)). Are the 12 December Notices Valid? [30] The primary issue for determination is whether the 12 December Notices are valid. The parties agree that the Commission does not have the power to make a binding declaration as to 5 [2021] FWC 6561. [2026] FWC 2534 16 the validity of the notices.6 However, in determining the application, the Commission must make a finding (or express an opinion) as to the validity or otherwise of the notices.7 This is so because if the notices issued do not comply with the legislative requirements, the Commission does not have jurisdiction to vary the proportion by which the employees’ payments are to be reduced. [31] There is no dispute that the 12 December Notices: • Are legible and in English; • Specify the day on which they were issued; • Specify the industrial action that constitutes the partial work ban; • State the notice will take effect from the later of the start of the first day of the partial work ban or the start of the first day after the date of the notice, if the employee performs work on that day; • State that the notice will cease to have effect at the end of the day on which the partial work ban ceases; and • State the employees’ payments will be reduced by an amount specified in the notice. [32] There area of dispute is whether the 12 December Notices comply with the requirement to specify an estimate of the usual time an employee would spend performing the work that is the subject of the partial work ban, and the amount (proportion) by which the employees’ payments will be reduced. Specifically, the issue is whether Healthscope were required to provide an amount (proportion) for each notified task. Summary of the ANMF’s Submissions [33] The ANMF contends that the 12 December Notices are not valid because Healthscope adopted a ‘bundled approach’ by rolling up multiple actions into two distinct categories – the Non-Clinical Duties Ban and the Data Entry Ban – and issued notices specifying estimates and proportions based on those categories rather than each notified action. In support of this contention, the ANMF submitted that the use of the definitive article ‘the’ in the context of ‘the ban’ in s.471(1)(c), and the reference to ‘the work’ in regulation 3.21 required Healthscope to estimate the usual time spent performing each specific work ban. The ANMF submitted that use of the singular ‘the ban’ in ss.471(1)(b)-(c), is distinct from the plural ‘partial work bans’ in the heading of s.471 and must be given work to do as a matter of statutory construction. The ANMF submitted that the focus of a s.471 notice is directed to a particular ban, not bans at large. 6 Re Cram; Ex parte Newcastle Wallsend Coal Company Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 149 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Carter v Auto Parts Group Pty Ltd [2021] FWCFB 1015; (2021) 304 IR 1 at [16]; Josue Kashindi Mpenda v St Vincent's Hospital Melbourne Ltd [2025] FWCFB 152 at [28]. 7 Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666 (citing Re Cram; Ex parte Newcastle Wallsend Coal Company Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 149). [2026] FWC 2534 17 [34] The ANMF submitted that the notification of multiple forms of discrete and separate industrial action in one notice is common practice and has been recognised by the Commission as valid, but that does not mean the notified industrial action will be taken collectively or concurrently. In support of this submission, the ANMF cited the decision in NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust T/A Transgrid v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia,8 (Transgrid v CEPU) where the Commission found that although there was notification of four different 24-hour work bans in one notice, there was nothing in the notice to indicate that the bans would be taken collectively as opposed to individually. [35] Furthermore, the ANMF submitted that the ‘bundled approach’ is inconsistent with the statutory scheme of the FW Act as it wrongly assumes that all action notified must be taken. Summary of Healthscope’s Submissions [36] Healthscope submitted that the drafting of the 12 December Notices reflects the approach adopted by the ANMF in notifying the protected action and the duties listed are simply the duties which comprise the ban. [37] Healthscope submitted that the ANMF’s focus on the definitive article ‘the’ in the context of ‘the ban’ is too narrow and that s.471 should be read in conjunction with, and in the context of, other relevant sections in the FW Act. Healthscope submitted that the other relevant sections include ss.409(2), 414(1), and 413(2), each of which refer to 'industrial action’ or ‘the action’ in circumstances where ‘action’ contemplates multiple types of action. [38] Healthscope accepts that employees are not obliged to take any or all of the industrial action notified. However, Healthscope submitted this is not a basis to challenge the validity of the 12 December Notices, rather it is relevant to whether Healthscope’s estimate is reasonable and whether the proposed deductions are fair. Consideration [39] In my view, the 12 December Notices meet the requirements of the FW Act and the FW Regulations and are valid for the following reasons. [40] The notification of protected industrial action issued by the ANMF on 4 December 2024 stated: We notify of protected action as follows: From 6:00am on Tuesday 10 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications. Specifically, ANMF NSW Branch members will ban: 8 [2024] FWC 1704. [2026] FWC 2534 18 a. The performance of any cleaning, dusting, washing, or mopping duties that do not require disinfection, do not occur in an isolation block, and/or do not form part of a nurse or midwife’s scope of practice as expressed in relevant professional standards (e.g., ACORN Standards); and b. The pushing and/or moving of beds; and c. The moving and/or carrying of patient bags/luggage; and d. The emptying of linen skips and/or bins; and e. The provision of catering services; and f. The answering of phones that are not carried by the Floor Manager/Nurse or Midwife in Charge; and g. Attending to door buzzers in closed wards/units. (Emphasis added) [41] On 9 December 2024, the ANMF issued two further notifications of protected industrial action. The first notification related to an additional task which does not form part of a nurse’s or midwife’s direct clinical duties and was set out as follows: We notify of protected action as follows: From 6:00am on Friday 13 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications. Specifically, in addition to those tasks already notified in Item 1 of our correspondence on 4 December 2024, the ANMF NSW Branch members will ban: a. The stripping, cleaning, and/or making of beds. (Emphasis added) [42] The second notification related to the processing and/or completion of data entry, forms, and paperwork, and was set out as follows: From 6:00am on Friday 13 December 2024 and continuing indefinitely until an agreement is reached, ANMF NSW Branch members will ban the processing and/or completion of the following data entry, forms, and paperwork: [List of data entry, forms, and paperwork duties varied between hospitals] (Emphasis added) [43] The purpose of the requirement to give written notice of protected employee industrial action is to provide the employer with an opportunity to take such steps as may be available in response to protect its interests.9 9 Boral Resources (NSW) Pty Ltd [2010] FWAFB 1771 at [14]; Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWCFB 5530 (Thiess) at [75]. [2026] FWC 2534 19 [44] Where a notification of protected industrial action is ambiguous or susceptible to more than one meaning, the relevant question is not what the author intended, but what the addressee would reasonably have understood from the terms used in the notice.10 [45] The ANMF did not give notification of individual partial work bans in relation to each identified task. Rather, in its notifications of protected industrial action, the ANMF identifies the partial work bans as: (i) “the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications”; and (ii) “the processing and/or the completion of the following data entry, forms, and paperwork”. [46] After setting out the partial work ban in each of its notifications, the ANMF then proceeds to list the tasks which comprise those bans. This becomes apparent from the terms used in the notification dated 9 December 2024 in relation to the stripping, cleaning, and/or making of beds. The ANMF could have notified Healthscope of a ban on the stripping, cleaning, and/or making of beds entirely separately. It did not do that. Rather, it repeated the ban set out in the notification dated 4 December 2024 and added the task of stripping, cleaning, and/or making of beds to “those tasks already notified” in the notice it issued on 4 December 2024. [47] If each task was to be read as a separate and distinct partial work ban, then there was no need for the ANMF to include the introductory text stating “members will ban the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications” and “members will ban the processing and/or completion of the following data entry, forms, and paperwork.” Those terms, followed by the listing of the tasks which comprise each partial work ban can be contrasted with the terms used in Transgrid v CEPU where each action was notified as an individual ban. It was therefore open and reasonable for Healthscope to understand and respond to the ANMF’s notifications in the way that it did in the 12 December Notices. As Ms Allsop stated, Healthscope had to plan as if all ANMF members would cease performing all non-clinical duties capable of being performed by another classification.11 [48] Even if each ‘task’ constituted a separate and distinct partial work ban, that does not mean the 12 December Notices are invalid. If an employee engages in protected industrial action on a particular day, and the industrial action is a partial work ban, the employer may give a written notice stating that because of the ban, the employee’s payments will be reduced by a proportion specified in the notice. Section 470(3) of the FW Act defines partial work ban by stating what it is not – namely a total stoppage of work or an overtime ban. This was clarified in the Explanatory Memorandum to the Fair Work Bill 2008 which states: 1864. An employer is prohibited from paying strike pay to an employee who engages in protected industrial action on a day, for the total duration of the action on that day (subclause 470(1)). Payments must be withheld in relation to the actual period when industrial action was 10 Esso Australia Pty Ltd v Australian Workers’ Union [2015] FCA 758 at [86]. 11 Exhibit R3 at [34]-[35]. [2026] FWC 2534 20 taken (e.g., if taken on a public holiday, payment at the applicable penalty rate (if any) must be withheld). 1865. Separate rules deal with partial work bans, which generally involve an employee attending for work, but failing or refusing to perform some of their normal duties (e.g., a ban on the marking of homework) (subclause 470(2)). 1866. Subclause 470(3) defines a partial work ban as industrial action that falls short of a total stoppage of work (that is, because the employee either fails or refuses to attend for work, or the employee attends work but fails or refuses to perform any work at all whether for the whole of part of a day). [49] Subject to notification requirements, employees are not prevented from engaging in more than type of ban, limitation, or restriction on a particular day. Unless those bans, restrictions, or limitations constitute a total stoppage, the refusal to perform that work is a partial work ban. It follows that I accept Healthscope’s submission that ‘industrial action’ or ‘the action’ contemplates multiple types of action. There is nothing in the FW Act which requires the proportion specified in a s.471 notice to be apportioned for each notified ban, limitation or restriction. Rather, the FW Regulations make clear that the proportion is to be calculated based on the ‘work’ the employee is refusing to perform – that is a proportion for the industrial action which comprises the partial work ban. That the FW Act has used the singular “the ban” in ss.471(1)(b)-(c), as distinct from the plural “partial work bans” in the heading of s.471, does not take the matter any further. That is because if an employee engages in more than one ban, limitation or restriction on a particular day, either concurrently or at different times, it does not alter the fact that, unless the industrial action engaged in is a total stoppage, it is a partial work ban. In my view, the use of the plural in the heading is simply a reference to partial work bans at large and does not provide any textual support for the ANMF’s preferred construction of the legislative provisions that follow. [50] Beyond pointing to the use of the plural in the heading, and submitting that the ‘bundled approach’ is inconsistent with the statutory scheme of the FW Act, the ANMF was unable to cite any authority in support of its contentions.12 To the contrary, there have been decisions of the Commission which have found s.471 notices are valid where they have included a single proportion for more than one notified ban, limitation or restriction. [51] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ASC Pty Ltd,13 the Commission considered an application under s.472 where 10 partial work bans had been implemented and the employer sought to reduce employee payments for the relevant classifications by an aggregate proportion for the work that was banned. In reducing the proportions for some classifications, but not otherwise disaggregating the proportion for each of the 10 notified partial work bans, Deputy President Bartel stated that:14 Regulation 3.21 requires the employer to identify the work that is or will be banned, estimate the usual time that the employee or the class of employees would spend performing the work “during a day” and then identify this amount as a percentage of an “employee’s usual hours of work for a day”. 12 Transcript at PN1149-PN1152. 13 [2012] FWA 1377. 14 Ibid at [33]. [2026] FWC 2534 21 [52] In Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment Society Incorporated (Catholic Education Office),15 the Independent Education Union of Australia notified the employer of five partial work bans by reference to questions in the protected action ballot. In response, the employer gave notice under s.471 in relation to three of the partial work bans, advising that if employees engage in those partial work bans, their payments will be reduced by 7%. While this proportion was ultimately reduced to 5% in relation to partial work bans on undertaking relief teaching, the s.471 notice was otherwise found to be valid.16 In coming to this conclusion, Commissioner Hampton (as the Deputy President then was) stated that where employees are not performing the work that is required of them by the employer during the period of the partial work ban, and this has consequences for the employer, a reasonable reduction may be applied consistent with the scheme of the FW Act.17 And further, that if the application of the formula, consistent with the FW Act and the FW Regulations, results in an unreasonable reduction, making an order to deal with that finding is consistent with the scheme of the FW Act and the discretion expressly given to the Commission under s.472.18 [53] While Healthscope provided separate proportions for the ‘non-clinical duties ban’ and the ‘data entry ban’, it was open to Healthscope to specify a single proportion for the totality of the work that the employees were refusing to perform on each day. Conclusion [54] I am satisfied that the 12 December Notices are valid. To the extent that the proportions specified may impact unfairly upon employees who did not take all of the notified action, that is a matter to consider under s.472(3) of the FW Act. Were the Proportions Specified in the 12 December Notices Reasonable and Fair? [55] In considering making an order to vary the proportions specified in the 12 December Notices, s.472(3) of the FW Act requires me to take into account: • whether the proportion specified in the 12 December Notices was reasonable having regard to the nature and extent of the partial work ban to which the notice relates; and • fairness between the parties taking into consideration all of the circumstances. [56] In TWU v Transit Systems, Deputy President Easton stated the following in relation to s.472(3)(a): [50] Section 472(3)(a) requires the Commission to consider whether the calculation under Regulation 3.21 is reasonable. This firstly requires the Commission to assess whether the 15 [2016] FWC 892 (IEU No 1). 16 IEU No 1 at [38]-[57], [74]; Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment Society Incorporated (Catholic Education Office) [2016] FWC 1057 (IEU No 2) at [49]-[50]. 17 IEU No 2 at [46]. 18 Ibid at [50]. [2026] FWC 2534 22 employer’s methodology and calculation of the time spent on banned work is sound. The Commission might consider whether the employer’s estimations of the time taken to perform certain work are reasonable, whether the employer has included or excluded particular tasks, and so on. [51] Importantly, the Commission must consider whether the calculation is reasonable “having regard to the nature and extent of the [partial work ban]”. The “nature” and “extent” of the ban entail more than just the time usually spent on the banned work. [52] A time-based calculation under Regulation 3.21 might not be reasonable, having regard to the nature and extent of the partial work ban, if the calculated proportion does not reasonably reflect the relative value of the banned work compared to other work not subject to the ban. It is important to emphasise that s.471 and s.472 refer to reducing payments by a ratio and that this consideration is directed to the relative value of the banned work rather than its absolute value. Similarly, this consideration is not directed to the absolute inconvenience or damage arising from the partial work ban. [53] In ACTION Commissioner Deegan reasoned that “work” is capable of meaning something more than the physical task that is banned and can include the “impact” of the banned task on the work of the employer (at [34]). The ban considered in that case Deegan C was to have a much greater impact because “all the operating costs of [the employer] will remain the same while the revenue will be substantially diminished” (at [43]) and because “a large part of the costs of operating the bus service is funded by government subsidy and not the collection of fare revenue” (at [49]). The Commissioner concluded (at [50]): “It is my determination that the most appropriate factor in determining this proportion is the percentage that fare collection contributes to the overall cost of providing the bus service. Thus, the payments to drivers implementing the partial work ban should be decreased by an amount which reasonably approximates to the percentage that fare collection revenue represents of ACTION’s total expenses. According to the submissions of ACTION this formula would result in the total payment made to each driver for each shift in which the ban is imposed being reduced by 20.1%.” [54] Considering the “impact” of banned work is a way of considering the relative value of that work. Work that has a greater impact is likely to be more valuable to the employer, even if it can be done quickly. The impact of the work has no place in the time-based calculation under Regulation 3.21, and a close read of the decision in ACTION does not reveal any finding to the contrary by the Commissioner. [55] If the time-based calculation under Regulation 3.21 is not reasonable because it overstates or understates the relative value of the banned work, the Commission may intervene to vary the proportion deducted so that employees are only paid for the portion of their work that is not the subject of a ban (recognising that the partial work ban provisions are an exception to the general prohibitions in s.470(1) and s.473). [56] The Commission must take into account both the reasonableness of the calculation under Regulation 3.21 and fairness between the parties. There is some overlap in the matters that the Commission might consider when assessing “reasonableness” (s.472(3)(a)) and also “fairness” (s.472(3)(b)). For example the Commission can and might consider the nature and extent of the partial work bans when considering fairness between the parties. [2026] FWC 2534 23 [57] I accept that Regulation 3.21 is only concerned with the calculation of the time that would be spent on carrying out the banned work, and that the focus is on Healthscope’s calculation and the methodology that underpins that calculation. Generally, I accept a methodology that assesses the time spent carrying out the banned work, such as what Healthscope has described as a ‘time in motion study’, would be a reasonable approach for the purpose of Regulation 3.21. However, I consider the calculations arrived at by Healthscope in this matter are unreasonable for the following reasons. [58] First, stock replenishing was included in some of the Regulation 3.21 calculations. It was conceded by Ms Lloyd and Ms Allsop that stock replenishing was not part of the notified protected action and therefore that it should not be included in the calculations. The inclusion of that component was unreasonable and the affected proportions will be varied accordingly. [59] Second, I cannot rule out that the calculations for shifts ranging from 7.6 hours to 12 hours have not been distorted by what was observed in the limited window of up to 1-2 hours. For example, if a high level of non-clinical or data entry duties occurred during the observational window and that did not occur consistently across the remainder of the shift, that could result in a higher proportion being allocated. Equally, if a low level of non-clinical or data entry duties occurred during the observational window and that did not occur consistently across the remainder of the shift, that could result in a lower figure. That may explain some of the extreme differences between the parties’ calculations. While I accept the evidence that Healthscope interrogated its methodology, took the lowest common dominator, and did not include any buffer, I consider there remains a degree of overestimation by Healthscope. I also consider there is a degree of underestimation in the calculations prepared by the ANMF. For example, the notification issued by Healthscope for employees in the role of ED Direct Care RN at the Northern Beaches Hospital specified a proportion of 27.78% for the non-clinical duties ban and 1.39% for the data entry ban. That equates to 3.5 hours over a 12-hour shift. At the other end of the spectrum, the ANMF submitted that some of the tasks falling within the scope of the data entry ban take only 1-2 seconds and others approximately 10 seconds. These estimations seem intuitively too high and too low respectively. [60] Third, in having regard to the nature and extent of the partial work ban, I have taken into consideration that the employees participating in the partial work ban will not (and did not) sit out during the time they were refusing to perform the non-clinical duties and data entry duties. Rather, they will continue (or continued) to perform clinical duties, which is the core function of their role. Although there may be some inconvenience and additional costs associated with covering for the employees participating in the partial work ban (although there was no evidence that any additional costs were incurred in this matter), Healthscope received the benefit of a commensurate increase in the performance of clinical duties/patient care during the partial work ban.19 [61] The ANMF also submitted that the specified proportions included a component for the clinical task of stripping, cleaning, and/or making of beds (when a patient needs a bed to be changed for clinical reasons), as opposed to the non-clinical task of stripping, cleaning, and/or making of beds (changing a bed between patients) and, on that basis, that the proportions specified in the 12 December Notices should be significantly reduced. However, I do not accept that submission accurately reflects the evidence before the Commission. Ms Allsop’s evidence 19 OSM Australia Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FWCFB 237 at [34]. [2026] FWC 2534 24 was clear that the specified proportions do not include any component for the clinical task of stripping, cleaning, and/or making of beds.20 Therefore, no variation is warranted on this point. [62] In relation to fairness between the parties, I have taken into account the errors identified in the 12 December Notices (both typographical and substantive) and that Healthscope has received the benefit of increased performance of clinical duties over the period of the partial work ban. On the issue of errors in relation to the Northern Beaches Hospital, I accept Healthscope sought to address this but did not issue any amended notices. Despite that, if the amending notices were issued, they would have included a reduced estimated time for OPD Day Medical (from 82 minutes to 46 minutes per 8-hour shift) and OPD Outpatients (from 50 minutes to 40 minutes per 8-hour shift). Even though the ANMF agreed with the higher estimation in the 12 December Notices, I consider it appropriate and a matter of fairness that I have regard to lower figures as part of my consideration. [63] In relation to other matters raised by the parties, I do not accept the ANMF’s submission that the proportions were not reasonable or fair because employees may have wanted to refuse to perform some but not all of the tasks. As set out above, I have found the partial work bans notified by the ANMF were a ban on the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications, and a ban on the processing and/or the completion of the following data entry, forms, and paperwork. It is well established that an employee is not required to take notified industrial action.21 However, if taken, the industrial action must accord with the nature of the action specified in the notice,22 which in this case is: • a ban on the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications; and • a ban on the processing and/or the completion of the following data entry, forms, and paperwork. [64] In any event, there is no evidence that any of the 33 employees who participated in the partial work ban participated by refusing to perform some but not all of the tasks that fell within the scope of the partial work ban. To the contrary, the evidence suggests that each of the 33 employees participated in the partial work ban by refusing to perform all tasks identified by the ANMF. [65] The ANMF also cited clause 36 of Healthscope - NSWNMA/ANMF - NSW Nurses’ and Midwives’ - Enterprise Agreement 2020-2024, which provides as follows: 36. Domestic Work (i) Except as provided in this clause, nurses, midwives, student nurses, enrolled nurses and assistants-in-nursing/midwifery shall not be required to perform, as a matter of routine, the following duties, viz: 20 Transcript at PN880-PN884. 21 Thiess at [75]-[76]. 22 Burswood Resort (Management) Limited v United Voice [2019] FWC 7571 at [54]. [2026] FWC 2534 25 washing, sweeping, polishing and/or dusting of floors, walls or windows of wards, corridors, annexes, bathrooms or verandas, nor any duties which are generally performed by classifications other than nursing/midwifery staff: but this provision shall not preclude the employment of nurses, midwives, student nurses, enrolled nurses and assistants-in-nursing/midwifery on any of such duties in an isolation block or where the performance of those duties involves disinfection. (ii) Nothing in subclause (i) of this clause shall preclude a student nurse/midwife, enrolled nurse or an assistant-in-nursing/midwifery from being required to perform all or any of the specified duties during the first thirteen weeks of training or experience, as the case may be. (iii) Nothing in subclause (i) of this clause shall preclude any employee from being required to perform all or any of the specified duties at any time when domestic staff is not available to perform them; provided that, the employer has made all reasonable efforts to obtain domestic staff. (Emphasis added) [66] The ANMF submitted that having regard to clause 36, it would be unfair to allow a deduction to be made in relation to duties that are routinely performed by other classifications, the effect of which is that the relevant employees will be paid less despite not being required to routinely perform those duties. However, there is no evidence that nursing/midwifery staff are required to perform any duties contrary to the parameters set out in clause 36. Where nursing/midwifery staff perform duties within the scope of the exceptions in clause 36, then it is open to Healthscope to have regard to that for the purposes of the Regulation 3.21 calculation. [67] Healthscope submitted that the ANMF has not adduced any evidence in relation to the impact, if any, that the deductions have had on the employees. Healthscope submitted, with reference to the High Court’s decision in Jones v Dunkel, that I should infer that the deductions did not adversely impact any of the employees and presumably, in absence of any adverse impact, the deductions are reasonable and fair.23 I do not consider it appropriate to draw such an inference in this case as the ANMF was not required to adduce such evidence. Further, if an inference was to be drawn, it is an inference that the evidence would not have assisted the ANMF’s case. However, I am not satisfied that merely because there may not have been any adverse impact on the employees that it follows the deductions were otherwise reasonable and fair, or that it would not have assisted the ANMF’s case. Conclusion [68] Having regard to the issues that I have set out above, and both mandatory factors in s.472(3) of the FW Act, I am satisfied that it is appropriate to vary the proportions specified in the 12 December Notices so as to place an upper limit on the proportion by which the employee’s payments may be reduced for the ‘non-clinical duties ban’ of 5% and the ‘data entry ban’ of 2.5%. This means that the maximum reduction is 7.5%. There are 202 specified proportions in the 12 December Notices that range from 0% to over 30% depending upon the employee’s hospital, department, and role. I will issue orders relating only to those hospitals, 23 (1959) 101 CLR 298. [2026] FWC 2534 26 departments and roles that are relevant to the 33 employees who have already received reduced payments by applying the following methodology: • In relation to the ban on the completion of tasks which do not form part of a nurse’s or midwife’s direct clinical duties and/or direct clinical care, and/or tasks which are capable of being performed by other classifications: (i) Remove any component for stock replenishing and recalculate the proportion; and (ii) Where the resulting proportion is greater than 5%, vary the proportion to 5%. • In relation to the ban on the processing and/or the completion of the following data entry, forms, and paperwork, where the proportion is greater than 2.5%, vary the proportion to 2.5%. [69] Applying that methodology will result in the following variations to the proportions specified in the 12 December Notices: Campbelltown Private Hospital: Operating Theatre Data Entry Ban: 2.5% Newcastle Private Hospital: Cath Lab Non-Clinical Duties Ban: 5% CCU Non-Clinical Duties Ban: 5% Delivery Suite Non-Clinical Duties Ban: 5% Post Natal Ward Non-Clinical Duties Ban: 5% Special Care Nursery Non-Clinical Duties Ban: 5% Northern Beaches Hospital OPD Dialysis Non-Clinical Duties Ban: 5% Sydney Southwest Private Hospital Operating Theatres (7.6hr) Non-Clinical Duties Ban: 5% Operating Theatres (8hr) Non-Clinical Duties Ban: 5% Operating Theatres (10hr) Non-Clinical Duties Ban: 5% [2026] FWC 2534 27 Operating Theatres (7.6hr) Data Entry Ban: 2.5% Operating Theatres (8hr) Data Entry Ban: 2.5% Operating Theatres (10hr) Data Entry Ban: 2.5% Anaesthetics (7.6hr) Non-Clinical Duties Ban: 5% Anaesthetics (8hr) Non-Clinical Duties Ban: 5% Anaesthetics (10hr) Non-Clinical Duties Ban: 5% [70] An Order to that effect will be issued with this decision. [71] If there is any dispute as to any other employee, the parties have liberty to apply for further orders. Any such application must be made within seven days of the date of this decision and specify proportions that are in dispute by reference to the hospital, department, and role. COMMISSIONER Appearances: C. Smith, for the Australian Nursing and Midwifery Federation G. Fredericks, of Counsel for Healthscope Operations Pty Ltd Hearing details: 2025 Sydney 4 March Final/Supplementary Written Submissions: Healthscope Operations Pty Ltd: 5 March 2025 Australian Nursing and Midwifery Federation: 12 March 2025 Printed by authority of the Commonwealth Government Printer <PR811771>