A laundry allowance that pathology staff had been receiving every week is now paid every fortnight, at the same rate. The Fair Work Commission has refused to change that. Commissioner Lee dismissed an application by the Health Services Union (HSU) to vary the Diagnostic Services Pty Ltd and Consultant Pathology Services Pty Ltd Enterprise Agreement 2025 so the allowance would again be paid weekly.
The HSU applied under s.218A of the Fair Work Act 2009. That section lets the Commission vary an enterprise agreement to fix “an obvious error, defect or irregularity”. After the change took effect, the union claimed the employers had “halved” the allowance.
The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
The dispute goes back to the 2021 agreement. Clause 15.2 provided for a laundry allowance “per fortnight as set out in Schedule 3”. Schedule 3 described the same allowance as “per week”. Agreements from 2012, 2017 and 2018 had all set the allowance per fortnight. The employers argued the weekly reference had been a drafting error all along. Faced with the inconsistency, they chose to pay weekly, while maintaining they were not obliged to.
During bargaining for the 2025 agreement, the employers’ representative sent bargaining representatives a draft with tracked changes on 14 November. It deleted “per week” from Schedule 3. The employers’ representative described the proposed changes as minimal and asked for feedback. The decision records no evidence that anyone queried the deletion. An HSU industrial organiser gave evidence that the employer never indicated during bargaining that the weekly payment would become fortnightly.
The explanation document given to employees before the vote said clause 15.2 was unchanged. It did not mention the deletion from Schedule 3. A letter from the chief executive urging a yes vote said “the proposed changes are minimal and do not reduce your current conditions”. About 60% of staff voted the first proposal down. A second version, with the laundry provisions unchanged and the explanation document relevantly the same, was approved by employees.
Commissioner Yilmaz approved the agreement on 4 May 2026. The HSU had lodged a Form F18 and raised concerns about the better off overall test (BOOT). Its submissions said nothing about the laundry allowance and did not dispute that employees had genuinely agreed to the agreement. The employers switched to fortnightly payments once the agreement started operating. The HSU applied for the variation on 3 July 2026.
that the omission of “per week” from Schedule 3, together with the employers’ failure to tell employees about the change, was an obvious “irregularity”. It relied on the use of the word in s.458(6) of the Act, which concerns protected action ballots, and on dictionary definitions including “a breach of rules, etiquette or principle” and “a breach of convention or normal procedure”. It sought to insert “(per week)” next to the allowance in Schedule 3.
that the weekly reference in the 2021 agreement had been a mistake that the deletion simply fixed, and strongly opposed the variation.
that there was no obvious error, defect or irregularity, so there was no power to vary the agreement. Read alongside “error” and “defect” in what is a “slip rule” provision (a power to fix obvious mistakes), “irregularity” did not extend to alleged improper conduct. The employers had shown the deletion as a tracked change in a draft they gave the union. “The Union did not notice the change, that is apparent. But its removal was not improper, dishonest or a breach of rules or principle.”
“The words of the Agreement, in respect of the Laundry Allowance, are perfectly clear,” the Commissioner said.
The Commissioner added that the discretion would not have been exercised even if the power existed. Reinserting “per week” would recreate the conflict with clause 15.2 and “introduce uncertainty and ambiguity into the Agreement where currently uncertainty and ambiguity does not exist”. The HSU’s real complaint, the Commissioner found, was that the employers had not complied with the genuine agreement requirements in s.180(5) and s.188. The Commissioner accepted there was “an apparent lack of explanation to employees” that weekly payments would end. But it was “not an appropriate use of the power under s. 218A to alter the terms of an Agreement to deal with an alleged failure to comply with pre-approval requirements”.
The matter was heard in Melbourne on 29 September 2026, and the decision was handed down on 15 October 2026. The HSU was represented by a legal officer, and the employers by a paid agent appearing with permission. The Commission found s.218A could not be used to change an agreement’s terms in response to an alleged failure to explain a change to employees before the vote.
At a glance
- Parties: Health Services Union (applicant); Diagnostic Services Pty Ltd and Consultant Pathology Services Pty Ltd (employers)
- Citation: [2026] FWC 3959
- Section: Fair Work Act 2009, s.218A
- Decision-maker: Commissioner Lee, 15 October 2026
- Outcome: Application dismissed; laundry allowance remains payable fortnightly
- Who it affects: Employees covered by the agreement who are required to wear a uniform
Source: [2026] FWC 3959
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