Peninsula Health - [2025] FWCA 2635

[2025] FWCA 2635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.216DA - Application by an employer for approval of a variation of a single interest employer agreement to add employer and employees

Peninsula Health

(B2025/1205)

Biomedical Engineers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2024-2028

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 15 AUGUST 2025

Application for variation of the Biomedical Engineers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2024-2028

This matter concerns an application by Peninsula Health (applicant employer) to approve a variation of the Biomedical Engineers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2024-2028 (Agreement) made by it with the employees employed by the applicant employer who will be covered by the Agreement if the variation is approved (relevant employees). In effect, the application is to add the applicant employer and its relevant employees to the coverage of the Agreement. The application has been made under s.216DA of the Fair Work Act 2009 (Act).

The Agreement was approved[1] by the Commission on 21 January 2025. It is a multi-employer agreement which was made involving 14 employers in consequence of a single interest employer authorisation[2] issued by the Commission on 2 April 2024. The employers concerned all operate in the public health and welfare services sector in Victoria and the employees concerned are Biomedical Engineers. The Victorian Hospitals’ Industrial Association (VHIA) is representing the applicant employer in this application. The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) is also covered by the Agreement and has supported the application.

The Agreement has a nominal life until 31 July 2028.

The applicant employer has brought this application on the basis that it is a ‘common interest’ employer, and it is has been agreed with its employees that they should be covered by the Agreement. The applicant employer is not a franchisee or related business in connection with the existing employers covered by the Agreement. Although it is not significant in this matter, the employer does not employ 50 or more employees.
The variation has no effect unless approved by the Commission.[3]

The directly relevant provisions of the Act are as follows:

“216D Variation of single interest employer agreement to add employer and employees—joint variation
Variation by employers and employees
(1)The following may jointly make a variation of a single interest employer agreement that will have the effect that they will be covered by the agreement:
(a)an employer that is not covered by the agreement;
(b)the employees employed by the employer at the time who will be covered by the agreement if the variation is approved by the FWC (the affected employees).

Variation has no effect unless approved by the FWC
(2)The variation has no effect unless it is approved by the FWC under section 216DC.
Approval by employee vote
(3)The employer may request the affected employees to approve the proposed variation by voting for it.
(4)Without limiting subsection (3), the employer may request that the affected employees vote by ballot or by an electronic method.
When a variation is made
(5)A variation under this section is made when a majority of the affected employees who cast a valid vote approve the variation.

216DAA Terms of variation must be explained to employees
(1)Before an employer requests under subsection 216D(3) that affected employees approve a proposed variation, the employer must take all reasonable steps to ensure that:
(a)the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees; and
(b)the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.

(2)Without limiting paragraph (1)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a)employees from culturally and linguistically diverse backgrounds;
(b)young employees;
(c)employees who did not have a representative for the variation.

216DA Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—joint variation
Application for approval
(1)If a variation of a single interest employer agreement is made under section 216D, the employer to be covered by the agreement must apply to the FWC for approval of the variation.
Material to accompany the application
(2)The application must be accompanied by:
(a)a signed copy of the variation; and
(b)a copy of the agreement as proposed to be varied; and
(c)any declarations that are required by the procedural rules to accompany the application.

When the application must be made
(3)The application must be made:
(a)within 14 days after the variation is made; or
(b)if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

Signature requirements
(4)The regulations may prescribe requirements relating to the signing of variations of single interest employer agreements made under section 216D.

216DB Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—application by employee organisation
Application for approval
(1)An employee organisation that is covered by a single interest employer agreement may apply to the FWC for the approval of a variation of the agreement that will have the effect that the following will be covered by the agreement:
(a)an employer that is not covered by the agreement;
(b)the employees employed by the employer at the time who will be covered by the agreement if the variation is approved by the FWC (the affected employees).

Material to accompany the application
(2)The application must be accompanied by:
(a)a signed copy of the variation for which approval is sought; and
(b)a copy of the agreement as proposed to be varied; and
(c)any declarations that are required by the procedural rules to accompany the application.

Signature requirements
(3)The regulations may prescribe requirements relating to the signing of variations of single interest employer agreements for which approval is sought under this section.

216DC When the FWC must approve a variation of a single interest employer agreement to add employer and employees
Approval of variation by the FWC
(1)The FWC must approve a variation of a single interest employer agreement if:
(a)an application for approval of the variation has been made under section 216DA or 216DB; and
(b)the FWC is satisfied that:
(i)the employers and any employee organisations covered by the agreement have had an opportunity to express to the FWC their views (if any) on the application; and
(ii)if the application was made by an employer under section 216DA—the variation has been genuinely agreed to by the affected employees in accordance with section 216DD; and
(iii)if the application was made by an employee organisation under section 216DB—the requirements of subsection (1A) are met; and
(iv)the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and
(v)if the requirements of subsection (3) are met—the operations and business activities of the employer are reasonably comparable with those of the other employers who are covered by the agreement.

(1AA)If:
(a)the application for approval of the variation was made by an employee organisation under section 216DB; and
(b)the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed for the purposes of subparagraph (1)(b)(v) that the operations and business activities of the employer are reasonably comparable with those of the other employers that are covered by the agreement, unless the contrary is proved.
Additional requirements for application by employee organisation
(1A)The requirements of this subsection are met if:
(a)the employer that will be covered by the agreement employed at least 20 employees at the time that the application for approval of the variation was made; and
(b)a majority of the affected employees want to be covered by the agreement; and
(c)subsection (1C) does not apply to the employer.

(1B)For the purposes of paragraph (1A)(b), the FWC may work out whether a majority of the affected employees want to be covered by the agreement using any method the FWC considers appropriate.
(1C)This subsection applies to an employer if:
(a)the employer and the affected employees are covered by another enterprise agreement that has not passed its nominal expiry date at the time that the FWC will approve the variation; or
(b)the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the affected employees have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and the affected employees or substantially the same group of the affected employees.

Franchisees
(2)The requirements of this subsection are met if the employers covered by the agreement and the employer that will be covered by the agreement carry on similar business activities under the same franchise and are:
(a)franchisees of the same franchisor; or
(b)related bodies corporate of the same franchisor; or
(c)any combination of the above.

Common interest employers
(3)The requirements of this subsection are met if it is appropriate to approve the variation, having regard to:
(a)whether the employers covered by the agreement and the employer that will be covered by the agreement have clearly identifiable common interests; and
(b)whether it would be contrary to the public interest to approve the variation.

(3A)For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:
(a)geographical location;
(b)regulatory regime;
(c)the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.

(3AB)If:
(a)the application for approval of the variation was made by an employee organisation under section 216DB; and
(b)the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the requirements of subsection (3) are met, unless the contrary is proved.
Calculating number of employees
(3AC)For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1A)(a) or (3AB)(b):
(a)employee has its ordinary meaning; and
(b)subject to paragraph (c), all employees employed by the employer at the time that the application was made are to be counted; and
(c)a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and
(d)associated entities of the employer are taken to be one entity.

Employers and employees that are already bargaining
(3B)Despite subsection (1), the FWC may refuse to approve the variation if the FWC is satisfied that:
(a)the employer is bargaining in good faith for a proposed enterprise agreement that will cover the employer and the affected employees, or substantially the same group of the affected employees; and
(b)the employer and the affected employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employer and the affected employees, or substantially the same group of the affected employees; and
(c)on the day that the FWC will approve the variation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

General building and construction work
(4)Despite subsection (1), the FWC must not approve the variation if:
(a)the agreement is a greenfields agreement that covers employees in relation to general building and construction work; or
(b)as a result of the variation, the agreement would cover employees in relation to general building and construction work.

Supported bargaining authorisation
(5)Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation in relation to any of the affected employees.

216DD Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees
(1)For the purposes of subparagraph 216DC(1)(b)(ii), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees in accordance with section 188, modified as follows:
(a)as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to;
(b)as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees;
(c)as if, in paragraph 188(2)(a), the reference to the agreement were a reference to the agreement as proposed to be varied;
(d)as if subsections 188(2A), (3) and (4) were omitted;
(e)as if, in subsections 188(4A) and (5), references to subsection 180(5) were references to section 216DAA;
(f)as if, in paragraph 188(5)(c), the reference to subsection 182(1) or (2) were a reference to subsection 216D(5).

(2)In taking into account the statement of principles made under section 188B:
(a)the FWC may disregard the matters mentioned in paragraphs 188B(3)(a) and (b); and
(b)the matters mentioned in paragraphs 188B(3)(c) and (d) are taken to be matters relating to the agreement as proposed to be varied; and
(c)the matters mentioned in paragraphs 188B(3)(e) are taken to be matters relating to the variation.

(3)The regulations may provide that, for the purposes of the FWC determining whether it is satisfied that the variation has been genuinely agreed to by the affected employees for the purposes of subparagraph 216DC(1)(b)(ii), specified provisions of this Part, or regulations made for the purposes of this Part, have effect with such modifications as are prescribed by the regulations.

216DE When the FWC may refuse to approve a variation of a single interest employer agreement
(1)If an application for the approval of a variation of a single interest employer agreement is made under section 216DA or 216DB, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:
(a)a person committing an offence against a law of the Commonwealth; or
(b)a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.

(2)Subsection (1) has effect despite section 216DC (which deals with the approval of variations of single interest employer agreements).
(3)If the FWC refuses to approve a variation of a single interest employer agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.

216DF When variation comes into operation
If a variation of a single interest employer agreement is approved under section 216DC, the variation operates from the day specified in the decision to approve the variation.”

As is evident from the above provisions, the approval requirements for a variation of this kind are different depending upon the nature of the applicant. In this case, it is the applicant employer and the relevant employees who have made the application to have their agreed variation approved by the Commission. This means that the (additional) requirements provided by s.216DB and ss.216DC(1A), (1B) and (1C), where an employee organisation is the applicant, do not apply. Further, the rebuttable presumptions in s.216DC(1AA) and s.216DC(3AB), associated with employers employing 50 or more employees, also do not operate.

In the circumstances of this matter, it was not necessary to conduct a hearing. Having considered the matter based upon the comprehensive materials before the Commission, I was satisfied that the application should be granted. I briefly deal with below, my satisfaction with the various requirements and considerations relevant to the determination of this application.

The making of the variation – s.216D and 216DAA

The Commission is being requested to approve the joint variation to the Agreement that has been made by the applicant employer and the relevant employees. It is convenient to first deal with the requirements of the Act in that regard. I will return later to the requirement that the variation has been genuinely agreed.

The variation may be jointly made by an employer that is not yet covered by a single interest employer agreement, and their affected employees, being the employees employed by it at the time who will be covered by the agreement if the variation is approved by the Commission. The relevant time would be when the variation is being made.[4]

The employer may request that the affected employees approve the proposed variation by voting for it. Any such vote may be undertaken by ballot or by an electronic method.[5]

The applicant employer in this matter is not yet covered by the Agreement and has agreed to a joint variation with their affected employees. The employees have approved the variation by a unanimous vote.

The Act also requires that before an employer requests the employees to approve the proposed variation, it must take all reasonable steps to ensure that the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees and that the explanation is provided in an appropriate manner taking into account the circumstances and needs of the employees.[6] The Act also provides some examples of the kinds of employees whose circumstances and needs are to be taken into account.[7]

The material provided with the application supports a finding that these requirements have been met. The measures undertaken included the provision of written explanations of the terms of the Agreement, comparisons between the varied Agreement, the existing arrangement and the terms of the existing modern award, and the impact the variation would have on the terms and conditions of employment. Appropriate information and notice were provided in advance of the ballot.

The variation has been made under the terms of the Act.[8]

The making of the application – ss.216DA and 216DC(1)(a)

As noted above, the application has been made by an eligible applicant employer. The material accompanying the application complied with the requirements of the Act and the Fair Work Rules 2009.

The application was made within 14 days after the variation was made.

The variation has been signed as required by the Act and Fair Work Regulations 2009.

The application is validly made. This meets the requirements of s.216DA and s.216DC(1)(a) of the Act.

The other approval requirements – s.216DC

Have the relevant parties had the opportunity to express their views?

I am satisfied that the employers presently covered by the Agreement, and APESMA as the covered employee organisation, have had the opportunity to express their views to the Commission on the proposed variation.[9] The employers concerned were each invited by the Commission to directly advise of their views on each application. APESMA has directly participated in the application. This meets s.216DC(1)(b)(i) of the Act.

No concerns have been raised with the Commission and APESMA supports the variation being approved, including by signing on behalf of the relevant employees.

Has each variation been genuinely agreed to by the affected employees in accordance with s.216DD of the Act?

Section 216DD of the Act provides, in effect, that the Commission must apply the terms of s.188 with the stated modifications which allow for the fact that the application concerned involves a variation to an agreement rather than the making of a new enterprise agreement. This includes that certain pre-employee approval steps required for the making of a new enterprise agreement[10] do not apply to a variation of a single interest employer agreement.

Section 188 and the directly related provisions are as follows:

“188 Determining whether an enterprise agreement has been genuinely agreed to by employees
Statement of principles
(1)The FWC must take into account the statement of principles made under section 188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.
Sufficient interest and sufficiently representative
(2)The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:
(a)have a sufficient interest in the terms of the agreement; and
(b)are sufficiently representative, having regard to the employees the agreement is expressed to cover.
Note:In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

Agreement of bargaining representatives that are employee organisations
(2A)The FWC cannot be satisfied that an enterprise agreement to which section 180A or 180B applies has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with section 180A or 180B (as the case requires) in relation to the agreement.
Where notice of employee representational rights was required
(3)Subsection (4) applies in relation to an enterprise agreement if an employer was required by subsection 173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement.
(4)The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with the following provisions in relation to the agreement:
(a)sections 173 and 174 (which deal with giving notice of employee representational rights);
(b)subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given).

Explanation of terms of the agreement
(4A)The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with subsection 180(5) in relation to the agreement.
Minor errors may be disregarded
(5)In determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement (including determining whether it is satisfied that an employer complied with the provisions mentioned in subsection (2A) or (4) or (4A)), the FWC may disregard minor procedural or technical errors made in relation to the following requirements if it is satisfied that the employees were not likely to have been disadvantaged by the errors:
(a)section 173 or 174 (which deal with notices of employee representational rights for certain agreements);
(aa)subsection 180(5) (which requires employers to explain the terms of agreements);

(ab)section 180A or 180B (which deal with agreement of certain bargaining representatives);
(b)subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given);
(c)subsection 182(1) or (2) (which deal with the making of different kinds of enterprise agreements by employee vote).

Regulations
(6)The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the requirements (if any) prescribed by the regulations for the purposes of this subsection are met.

… …

188B Statement of principles on genuine agreement
(1)The FWC must, by legislative instrument, make a statement of principles for employers on ensuring that employees have genuinely agreed to an enterprise agreement.
(2)The FWC must publish the statement on the FWC’s website and by any other means that the FWC considers appropriate.
(3)The statement must deal with the following matters:
(a)informing employees of bargaining for a proposed enterprise agreement;
(b)informing employees of their right to be represented by a bargaining representative;
(c)providing employees with a reasonable opportunity to consider a proposed enterprise agreement;
(d)explaining to employees the terms of a proposed enterprise agreement and their effect;
(e)providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing employees of the time, place and method for the vote;
(f)any matter prescribed by the regulations for the purposes of this paragraph;
(g)any other matters the FWC considers relevant.

(4)The statement is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the statement.”

A Full Bench[11] of the Commission has clarified the operation of these provisions in light of the Statement of Principles in the following terms:

“[76] The important point to be made is that while the Commission is required to take into account the Statement of Principles in determining whether an agreement has been genuinely agreed, it does not operate as a set of mandatory rules that must be complied with by an employer absent which the Commission cannot be satisfied that an agreement has been genuinely agreed. Where an employer follows pre-approval steps that are consistent with the Statement of Principles, that would weigh more favourably towards a conclusion that an agreement has been genuinely agreed. The converse is equally true of course. The requirement to take into account the Statement of Principles does not displace the requirement to consider each of the other matters set out in s 188 in determining whether an agreement has been genuinely agreed. In the present case, the SDA submits that there are various grounds upon which we should find that the Agreement has not been genuinely agreed. We turn to those matters now.”

I have taken into account the Statement of Principles in considering the requirements of s.188 of the Act in its form as modified by s.216DD.

Without dealing with all matters which arise, I am satisfied that the employees involved in voting for the variation had both a sufficient interest in the variation and are sufficiently representative of the employees to be included in the Agreement as a result of the variation. Further, the agreed variation is authentic including by virtue that the employees who voted for the variation had an informed and genuine understanding of what was being approved.

I have earlier found that the employer had met the relevant pre-ballot information requirements of s.216DAA and I consider that the arrangements for the ballot were consistent with the making of a genuinely agreed variation. In this regard, although the ballot was not conducted on a strictly confidential basis as contemplated by the Statement of Principles, I have considered the other features of the ballot including that the VHIA conducted the ballot independently, and the involvement of APESMA in the process and its support for a finding of genuine agreement, in reaching the above view. Further, all of the relevant employees voted and all approved the variation.

I am satisfied that the requirements of s.216DC(1)(b)(ii) of the Act have been met.

Have the requirements of either ss.216DC(2) or 216DC(3) been met?

It is s.216DC(3) of the Act that applies here. That is, the applicant employer must meet the ‘common interest’ and the ‘not contrary to the public interest’ requirements. In the case of a variation, the Commission must assess whether it is appropriate to approve the variation having regard to these considerations. If satisfied, this would meet the requirements of s.216DC(1)(b)(iv).

In Application by UWU, AEU and IEU,[12] the Full Bench said the following in relation to the expression ‘common interests’ in s.243(1)(b)(ii) in connection with applications for supported bargaining authorisations:

“…the expression ‘common interests’ used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application is one of wide import, and on its ordinary meaning extends to any joint, shared, related or like characteristics, qualities, undertakings or concerns as between the relevant employers. The diversity of the non-exhaustive list of ‘examples’ of common interests in s 243(2) gives contextual support to the breadth of meaning which we assign to the expression. The common interests must be ‘clearly identifiable’, that is, plainly discernible or recognisable, but need not be self-evident.”

Noting the different role to be played by the “non-exhaustive lists” of ‘common interests’ that are expressed in the two sections involved,[13] the notion of what may be common interests in the above approach is of guidance. In matters of this kind, the factors that may be relevant are identified[14] as including:
·    geographical location;
·    regulatory regime; and
·    the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.
I am satisfied that the applicant employer has clearly identifiable common interests with the employers already covered by the Agreement. This is supportive of the view that it is appropriate to make the variation sought. Amongst other matters, the following factors identified in the material before the Commission support that finding. The applicant employer, along with the existing employers:

· Delivers health services to the Victorian community, have sites located in Victoria, and patients and clients often transfer between the employers already covered by the Agreement for different aspects of their treatment.
· Is subject to the same regulatory standards, the same Modern Award, and is substantially funded by the State of Victoria;
· The employees are public sector employees;
· The employers core terms and conditions of employment are substantially the same; and
· The employers have a history of bargaining together.

I observe that as is evident, the applicant employer and the employers already covered by the Agreement all have worksites in Victoria. I consider that this aspect alone would not be a significant indicator of relevant common interests, and it is the identified consequences of this factor that lead to the common interests.

The notion of public interest was recently considered by a Full Bench[15] of the Commission in a related context. Amongst other observations and relying upon earlier authority, the Full Bench stated that the expression “in the public interest” imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.[16] Further, that “in identifying matters that may be relevant to an assessment of the public interest, a distinction is often drawn between matters affecting the public interests and the private interests of the parties.”[17]

The Full Bench also relevantly stated that:

“The distinction between matters that affect the public interest as opposed to the private interests of the parties will often not be clear. A consideration may affect both the interests of the public at large and the interests of one of more of the parties to the proceedings. The interests of the public might also be affected as a result of the impact of an authorisation on one of the parties. The assessment of whether the making of an authorisation is contrary to the public interest will depend, very much, on the facts of a particular case.”[18]

As to the notion that the test is whether the authorisation (in this case the approval of the variation) is contrary to the public interest, the Full Bench stated:

“… … it must be proved that there is some consequence that would result from making an authorisation that could lead to the conclusion that it is contrary to the public interest to do so. Of course, the identification of one consideration or consequence of making an authorisation that might be said to be contrary to the public interest may not be sufficient. It will, in such a case, be necessary to assess the whole of the facts and circumstances to determine whether, as a whole, it had been proved that making an authorisation would be contrary to the public interest.”[19]

In this matter, nothing has been identified that might challenge the public interest. The parties have freely agreed their terms and conditions, which have previously been approved by the Commission, in the context of the provisions of the Act. The variation directly impacts a limited number of parties.

Having regard to all of the circumstances of this matter I am also satisfied that it is not contrary to the public interest to make the variation.[20]

These findings meet the requirements of s.216DC(1)(b)(iv) of the Act.

Does the applicant employer have reasonably comparable operations and business activities with the other employers covered by the Agreement?

As the requirements of s.216DC(3) have been met, s.216DC(1)(b)(vi) of the Act requires that the operations and business activities of each of the applicant employers are reasonably comparable with those of the other employers presently covered by the Agreement. The material before the Commission, including that associated with the assessment of common interests, supports such a finding. In reaching this conclusion and those concerning other relevant matters, I have also had regard to the circumstances of the employers presently covered by the Agreement revealed in the decision of the Commission approving the relevant Authorisation.[21]

This finding meets the requirements of s.216DC(1)(b)(v) of the Act.

Existing bargaining

Section 216DC(3B) of the Act provides that the Commission may refuse to approve the variation if satisfied, in effect, that all of the following apply:

· The employer concerned is bargaining in good faith for an enterprise agreement that will cover the same or substantially the same group of employees; and
· The employer and the employees have a history of effectively bargaining; and
· On the day of approval, less than 9 months has elapsed since the most recent nominal expiry date of an existing enterprise agreement.

These circumstances do not apply to the applicant employer.

General building and construction work

Section 216DC(4) of the Act prevents a variation of this kind being approved if it were to cover employees in the general building and construction industry. That term is relevantly defined in s.23B and there are no employees of the applicant employer undertaking work in that industry who would be covered by the Agreement.

The employees concerned here work as Biomedical Engineers in the Victorian Public Hospital Sector.[22]

As a result, the Agreement will not cover employees in relation to general building and construction work, including because of the variation. This meets the requirements of s.216DC(4) of the Act.

The absence of a relevant supported bargaining authorisation

Section 216DD(5) of the Act provides that the Commission must not approve a variation of this kind if the employer that would be covered is specified in a supported bargaining authorisation in relation to the affected employees.

The applicant employer concerned here is not subject to a supported bargaining authorisation.

Other considerations – s.216DE

Section 216DE of the Act provides, in effect, that the Commission may refuse to approve the variation if it considers that the terms of the agreement as proposed may result in a person committing an offence against the law of the Commonwealth or being liable to pay a pecuniary penalty in that regard.

The variation is to join an existing approved enterprise agreement following a process consistent with the terms of the Act. Section 216DE is not engaged.

Conclusions and approval

Given my satisfaction with all of the relevant requirements, and having assessed the relevant considerations, I was required to approve the variation.

The variation is approved and is attached to this decision as Annexure A. The coverage of the Agreement is confirmed in Appendix 1 – List of Employers of the Agreement. The variation adds the name of Peninsula Health to the Appendix. The consolidated version of the Agreement, as varied, is also attached to this decision.

The Commission has a discretion under s.216DF of the Act to determine the date of effect of the variation. The variation in this matter will operate from the date of this decision, 15 August 2025, as expressly sought by the parties.

DEPUTY PRESIDENT

Hearing details:

Determined on the papers.

ANNEXURE A

The Biomedical Engineers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2024-2028 (Agreement) is varied as follows:

To cover the following Employer:
Peninsula Health (ABN 52 892 860 159); and

all Biomedical Engineers employed by the Employer identified in Paragraph 1 of this variation.

By deleting the existing Appendix 1 – List of Employers of the Agreement; and

By inserting the amended Appendix 1 – List of Employers of the Agreement in the following terms:

APPENDIX 1 - LIST OF EMPLOYERS
1 Alfred Health
2 Austin Health
3 Barwon Health
4 Eastern Health
5 Goulburn Valley Health
6 Latrobe Regional Health
7 Melbourne Health
8 Monash Health
9 Northern Health
10    Peninsula Health
11    Peter MacCallum Cancer Institute
12    The Royal Children’s Hospital
13    The Royal Womens Hospital
14    South West Healthcare
15    Western Health

The variation comes into operation from the date that it is made.

Signed for and on behalf of Peninsula Health:

……………………………………………………..	……………………………………………………..
Jana Gazarek	*Witness signature*
Authority to sign: Acting Chief Executive of Peninsula Health	Witness name: Suzie Tomlinson, EA to Chief Executive ……………………………………………………..
Address:	Date: 28 July 2025
2 Hastings Rd (PO Box 52), Frankston, Victoria 3199

Signed by the Association of Professional Engineers, Scientists and Managers, Australia (trading as Professionals Australia) on behalf of affected Employees:

*Scott Crawford*
Authority to sign: National Director – Industrial Relations of Professionals Australia, employee bargaining representative
Address:	Date: 29/07/25
152 Miller Street, West Melbourne, VIC 3003

[1] [2025] FWCA 233.

[2] PR772756.

[3] Section 216D(2) of the Act.

[4] Section 216D(1) of the Act.

[5] Section 216D(3) and (4) of the Act.

[6] Section 216DAA(1) of the Act.

[7] Section 216DAA of the Act.

[8] Section 216D(5) of the Act.

[9] Section 216DC(1)(b)(i) of the Act.

[10] Including ss.180A, 180B, 173, 174 and 181 as called up by s.188(2A), (3) and (4) of the Act.

[11] Shop, Distributive and Allied Employees Association v Allen Family Pty Ltd t/a Subway Clare, Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie[2024] FWCFB 48 at [76].

[12] [2023] FWCFB 176 at [34] as applied to a single interest employer authorisation application in Independent Education Union of Australia v Catholic Education Western Australia limited and others[2023] FWCFB 1177 at [31].

[13] Section 243(2) provides examples of common interests whereas in s.216DC(3A) the factors are matters that may be relevant to determining whether the employers have a common interest.

[14] Section 216DC(3A) of the Act. See the discussion of a related provision in The Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal and Others[2024] FWCFB 253 at [399].

[15] Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shirs Counsil, Ararat Rural City Council[2024] FWCFB 444 at [69] to [80].

[16] Ibid at [69].

[17] Ibid at [70].

[18] Ibid at [71].

[19] Ibid at [72].

[20] Section 216DC(3)(b).

[21] [2024] FWC 776.

[22] Consistent with the authorisation – [2024] FWC 776 at [1] and [17].

Printed by authority of the Commonwealth Government Printer

Actions

Download as PDF Download as Word Document

Citations

Peninsula Health [2025] FWCA 2635

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

0

One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77

Victorian Hospitals' Industrial Association [2025] FWCA 233