Bargaining for WA nurses and midwives, and what is happening now.

The parties to WAH042 are the state union and the employers it lists: the Director General of the Department of Health, the health service providers and the Mental Health Commission (cl 4(2)–(3)). On the employers' side, the Department's chief executive manages "WA health system-wide industrial relations on behalf of the State, including the negotiation of industrial agreements" (HSA s 20(1)(f)).

WAH042 has no clause fixing when talks for its replacement open. The Justice agreement commits the parties to open negotiations "at least six months prior to the expiry" (DEP187 cl 5(3)).

An industrial agreement is an agreement about industrial matters between a union and an employer, registered by the Commission (s 41(1)–(2)). It must specify a nominal expiry date no later than 3 years after it comes into operation (s 41A(1)(a)).

After that date it "continues in force" for all parties, except any party that retires from it, until a new agreement or an award is made in its place (s 41(6)). A party may retire by filing a notice of intention to retire at any time after expiry, or up to 30 days before; it stops being a party 30 days after filing (s 41(7)). WAH042 itself says it "will continue in force until replaced by a new agreement" (cl 5(2)).

WAH042 is comprehensive and "applies to the exclusion of any Award" (cl 6(1)). So no award sits underneath it, and pay generally changes only through a new or varied agreement, an arbitrated term or an enterprise order.

A union or an employer starts the formal process by written notice to the other party (s 42(1)). Bargaining is initiated when the other party replies, within 21 days, that it will bargain (s 42A(1), (6)). While an agreement is in force, the notice cannot be given earlier than 90 days before its nominal expiry date (s 42(5)).

Each negotiating party "must bargain in good faith" (s 42B(1)). Good faith includes, among other things (the letters are the Act's) (s 42B(2)):

(a) stating and explaining your position on the matters at issue;

(b) meeting at reasonable times, intervals and places for face-to-face bargaining;

(c) disclosing relevant and necessary information;

(d) acting honestly and openly, including "not capriciously adding or withdrawing items";

(g) "bargaining genuinely and dedicating sufficient resources to ensure this occurs".

Good faith does not require a party to agree to any term, or to make an agreement at all (s 42D). The Commission may make orders to ensure the parties bargain in good faith (s 42E), but it cannot make a party enter an agreement or put a term in it (s 42F).

There are three routes in the IR Act.

(a) Arbitration of the unagreed terms. Where the parties have agreed some, but not all, of an agreement, they may jointly ask the Commission to decide the rest (s 42G). This has happened for WA Health nurses: in 2014 the Commission arbitrated a number of clauses of the 2013 nurses' agreement under s 42G (The Minister for Health v Australian Nursing Federation, Industrial Union of Workers Perth [2014] WAIRC 00818 at [1]).

(b) A declaration that bargaining has ended. A single commissioner may declare that bargaining has ended if satisfied that the applicant has bargained in good faith, that bargaining has failed, and that there is no reasonable prospect of agreement (s 42H(1)). No appeal lies from the declaration (s 42H(2)).

(c) An enterprise order. After a declaration, the negotiating party named in it may apply within 21 days for an enterprise order (s 42I(2)–(3)). The Commission may then make an order providing for any matter that might otherwise be in an industrial agreement and that it "considers is fair and reasonable in all of the circumstances" (s 42I(1)(c)–(d)). An enterprise order must expire no more than 2 years after it comes into operation (s 42K(2)).

The Commission can also help short of these routes. In 2016, with the WA Health employers offering 1.5% in line with the wages policy and a s 42H declaration foreshadowed, the Commission convened conferences and issued a recommendation about how the dispute should progress (Child and Adolescent Health Service v Australian Nursing Federation Industrial Union of Workers Perth [2016] WAIRC 00783). The agreement was registered later that year (Child and Adolescent Health Service v Australian Nursing Federation Industrial Union of Workers Perth [2016] WAIRC 00841).

The WA Government sets its bargaining position through a public sector wages policy. The Public Sector Wages Policy Statement 2026, issued on 26 May 2026, applies to WA public sector industrial agreements, except that the 2023 statement "continues to apply to industrial agreements that expired before 6 May 2026" (PSWPS 2026 cl 4–5). WAH042 expires after that date, so its replacement falls under the 2026 statement. The statement:

(a) states no percentage cap. In making offers the Government will "place specific emphasis on delivering financially sustainable outcomes that are reasonable in the context of each negotiation" (cl 6(a));

(b) gives priority to initiatives supporting attraction and retention, regional service delivery and "direct and permanent employment as the preferred mode of employment" (cl 7);

(c) makes a new agreement apply from registration, with retrospective wage increases to the expiry of the previous agreement something the Government "may consider" (cl 9);

(d) does not apply a new agreement to employees who leave before it is registered (cl 10).

The policy is the Government's position, not a rule for the Commission. But when the Commission arbitrates terms or makes an enterprise order binding a public sector employer, it must consider any applicable wages policy statement, the State's financial position and the employer's budget (s 26(2A)–(2B)). These are "in addition to" the general economic factors in s 26(1)(d) (s 26(2C)). The Commission in Court Session has said that the Act "does not make s 26(2A) a standard against which the other considerations are to be assessed. Nor is s 26(2A) of greater weight than those matters in s 26(1)(d)" (The Minister for Health v Health Services Union of Western Australia (Union of Workers) [2015] WAIRC 00332 at [123], a WA Health case for another union).

WAH042's dispute procedure runs from the manager, to the manager's superior, to the Chief Executive, and then to the WAIRC "for conciliation and arbitration" (cl 73(2)). Until the matter is decided, "work will continue normally", unless an employee has "a reasonable concern about an imminent risk to their health and safety" (cl 73(1)(b)). Ratio disputes have their own four-stage procedure (cl 10(9)).

The Commission's everyday tool is the compulsory conference (s 44). It may make interim orders to "prevent the deterioration of industrial relations" until the matter is resolved, or to enable conciliation or arbitration to resolve it (s 44(6)(ba)(i)–(ii)). In a Full Bench decision, the Acting President said these orders are not governed by the courts' injunction principles, and the other members agreed on that point (The Director General, Department of Education v The State School Teachers' Union of WA (Inc) [2011] WAIRC 00058 at [57], [93], [122]). She added that they "are not confined to making orders to maintain the status quo" ([58]).

An agreement's entitlements are enforced in the Industrial Magistrates Court (s 83), which can order underpayments repaid, generally for up to 6 years (s 83A).

"Industrial action" is defined widely: any act or omission by a union, employer, employee or anyone else for the purpose, "or in the opinion of the Commission for the purpose", of compelling acceptance of terms of employment or enforcing a demand about employment (s 7(1)).

The IR Act has no scheme of protected industrial action. Three provisions bear on it:

(a) the Commission may determine that industrial action is a breach of the duty to bargain in good faith (s 42B(3));

(b) an employer facing action can ask for a compulsory conference and an interim order under s 44(6)(ba) that the action stop;

(c) if a s 44 order is not complied with, the Registrar, at the Commission's direction, may apply to the Full Bench (s 84A(1)(b)). If the breach is proved, the Full Bench may accept an undertaking, issue a caution, impose a penalty of up to $13,000, or direct the Registrar to issue a summons about the union's registration (s 84A(5)(a); s 73(1)).

Most private hospital nurses are under a single-enterprise agreement with their employer (s 172(2)). The Fair Work Commission must approve it if, among other things, it has been "genuinely agreed to by the employees covered by the agreement" and "passes the better off overall test" against the modern award (s 186(2)(a), (d)). For nurses that award is usually the Nurses Award 2020; for assistants in nursing in residential aged care, the Aged Care Award 2010.

A union that was a bargaining representative is covered by the agreement if it gives notice under s 183 and the Commission notes this in its approval decision (s 201(2)). The St John of God agreement, for example, covers the ANMF WA Branch (AE530159 cl 2(2); Application by St John of God Health Care Inc [2025] FWCA 2808 at [6]).

A federal agreement keeps operating after its nominal expiry date until it is replaced or terminated.

Several employers can bargain together for a multi-enterprise agreement. Under supported bargaining, the Commission must authorise this where it is "appropriate" for the employers and employees to bargain together, having regard to prevailing pay and conditions "including whether low rates of pay prevail", the employers' common interests and whether the process would be manageable, and where at least some employees are union-represented (s 243(1)). One example of a common interest is "being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory" (s 243(2)(c)), which describes much of aged care. When we searched the Commission's agreements on 3 November 2026 we found no supported bargaining agreement covering WA aged care.

A bargaining representative may apply for an intractable bargaining declaration (s 234). The Commission may make one only after the minimum bargaining period, which, where an agreement already applies, is the later of 9 months after its nominal expiry date and 9 months after bargaining starts (s 235(1), (5)). It must be satisfied that it has dealt with the dispute and the applicant took part, that there is "no reasonable prospect of agreement being reached" without a declaration, and that a declaration is reasonable in all the circumstances (s 235(2)).

The Commission must then make an intractable bargaining workplace determination (s 269). Certain terms of it, other than wage increases, must be not less favourable to the employees than the terms of their existing agreement (s 270A(2), (4)).

Unlike the WA system, the FW Act allows protected industrial action during bargaining. For action to be protected:

(a) the employees must have voted for it in a protected action ballot (s 409(2)), and notice of the action cannot be given until the ballot results are declared (s 414(3));

(b) the union must be "genuinely trying to reach an agreement" (s 413(3));

(c) written notice of at least 3 working days must be given for a single-enterprise agreement, specifying the nature of the action and when it will start (s 414(1)–(2), (6));

(d) the action must not be taken before the existing agreement passes its nominal expiry date (s 413(6), referring to s 417).

Protected action in health care meets a firm limit. The Commission "must" suspend or terminate protected action if satisfied it has threatened, is threatening, or would threaten "to endanger the life, the personal safety or health, or the welfare, of the population or of part of it" (s 424(1)(c)). It may act on its own initiative or on application by a bargaining representative or the federal Minister (s 424(2)). A State Minister may apply only if the State is a referring State (s 424(2)(iia)), which WA is not, because it has not referred its industrial relations powers (see s 30B). The Commission must decide an application within 5 days as far as practicable, or else suspend the action in the meantime (s 424(3)–(4)).

The Commission must also suspend protected action that is threatening to cause significant harm to a third party, on the application of someone directly affected or the Minister (s 426).

Each agreement has its own dispute clause. The St John of God agreement runs from the supervisor, to a senior St John of God representative, to St John of God, and then to the Fair Work Commission for conciliation and, if still unresolved, arbitration (AE530159 cl 52). Its workload grievance goes to the nurse manager and then the Director of Nursing before the dispute procedure (cl 54(7)–(8)).