The union banked on three words in a wage table - the Commission wasn't buying it
A union push to lock in above-award wage premiums for aged care nurses beyond the life of their enterprise agreement has failed at the Fair Work Commission.
The dispute pitted the Australian Nursing and Midwifery Federation's Queensland branch against BlueCare, a large Queensland provider of in-home care, residential aged care and retirement living operated by UnitingCare Queensland. At its heart was a deceptively simple question: when an enterprise agreement expires but keeps running, do wage clauses pegged to award rates keep moving too?
The Commission said no.
The deal on the table
The BlueCare Nursing Employees Enterprise Agreement 2024 was approved on May 7, 2024, with a nominal expiry date of May 14, 2026. Under Australian workplace law, enterprise agreements continue to operate after expiry until they are replaced or terminated - but the question of which specific obligations survive that date is not always straightforward.
The agreement covered three classifications of nursing staff - Assistants in Nursing (AINs), Enrolled Nurses (ENs) and Registered Nurses (RNs) - each with a different pay structure.
For AINs and ENs, the agreement guaranteed base rates at set percentages above the relevant modern award rate: 5% for AINs, 10% for ENs and 13% for Enrolled Nurse Level 3s. The wage schedule in Schedule 1 listed these premiums with the notation "at all times" in the final column. Registered Nurses, by contrast, received fixed percentage increases - 3% from July 2024 and 2% from July 2025 - with no ongoing link to the award.
Three words, one big argument
The union argued those three words - "at all times" - meant the above-award premiums had to track the modern award indefinitely, including after the agreement's expiry. When the annual wage review lifted award rates in July 2026, the union said BlueCare was obliged to pass on corresponding increases. It sought back-pay from July 7, 2026 and an order for ongoing payment at the above-award margins.
Three other unions covered by the agreement - the Health Services Union and the United Workers Union - backed that position.
BlueCare saw it differently. The employer accepted that AIN and EN wages were linked to above-award percentages and that award rates had gone up in July 2026. What it did not accept was that the link survived the expiry date.
The employer pointed to the structure of Schedule 1: the wage table broke increases into two discrete periods - from the first full pay period after July 1, 2024, and from the first full pay period after July 1, 2025. If the parties had intended an open-ended link to the award, there would have been no reason to separate the two periods. The structure, BlueCare argued, anticipated increases for two defined years - ending with the nominal expiry date.
What workers were told before the vote
Under the Fair Work Act, employers must explain the terms and effect of a proposed agreement to employees before the ballot. These pre-vote materials - known as "access materials" - can carry real weight when a clause is later disputed.
BlueCare's FAQ document told employees that AINs would be "paid and maintained at 5% above the Nursing Award for the life of the agreement" and ENs at "10% above the Nursing Award for the life of the agreement." A separate comparison document described Schedule 1 as providing "pay increases for the nominal term of the Agreement."
The Commission found these materials clearly supported the employer's reading. The above-award premiums were intended for the life of the agreement - its nominal term - not indefinitely.
The union relied on tracked changes and bargaining notes from the drafting process. But the Commission noted that under established interpretation principles, what employees were told before voting carries more weight than evidence of bargaining positions taken during negotiations.
No "anniversary," no ongoing obligation
The Commission also distinguished the case from two Federal Court decisions the union relied on. In Qube Logistics (Rail) v Australian Rail, Tram and Bus Industry Union, the Federal Court found a wage increase clause survived the nominal expiry date - but that agreement expressly provided for increases on "each anniversary" in the absence of renegotiation. Similarly, in Australian Workers' Union v BIS Industries Limited, the key phrase was "on each anniversary of the Agreement's approval."
The BlueCare agreement contained no anniversary language. The phrase "at all times" did not, in the Commission's view, function as an anniversary trigger. The case law the union relied on turned on different wording.
The Commission also flagged a practical problem with the union's interpretation: if above-award premiums for AINs and ENs continued to rise after expiry while RN rates stayed frozen, the lower-classified roles could eventually overtake Registered Nurses. Nothing in the bargaining materials suggested the parties ever contemplated that outcome.
No new rights either
The union had alternatively asked the Commission to create a "new right" - effectively a new post-expiry wage rate. The Commission declined. Manufacturing a result through interpretation was not its role. As the Full Bench has stated in established case law: "The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome."
Both questions for arbitration were answered in the negative on October 23, 2026.
The safety net still holds
The decision does not leave workers without protection. The Fair Work Act requires that base rates under an enterprise agreement cannot fall below the modern award rate. If bargaining for the replacement agreement drags on and agreement rates dip below the award floor, the statutory safety net kicks in automatically.
For HR teams drafting enterprise agreements, the practical takeaway sits in the mechanics: if above-award premiums are intended to track the award beyond expiry, the agreement needs to say so explicitly - with anniversary language or an express statement that the obligation survives. Three words in a wage table column were not enough.
The decision is subject to appeal. The parties are currently bargaining for a replacement agreement.
