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[123]
[2026] FWC 660
General information, not legal advice.
Fair Work Commission
2026-02-27
Original judgment source is linked above.
s.242 - Application for the FWC's approval of a supported bargaining authorisation
Australian Municipal, Administrative, Clerical and Services Union
Application for a supported bargaining authorisation.
[1] This decision concerns an application by the Australian, Municipal, Administrative, Clerical & Services Union (ASU) pursuant to s 242 of the Fair Work Act 2009 (Cth) (Act) for a supported bargaining authorisation covering Citywide Service Solutions Pty Ltd (Citywide) and Green Life Group Pty Ltd (Green Life) (together, the Employers).
(1) Citywide and 'their employees who are engaged to perform parks and gardens work for local government in the State of Victoria'; and
(2) Green Life and 'their employees who are based at the Hume, Whittlesea, Melton, and Kingston depots who are engaged to perform work for local government.'
(1) Citywide's depots including Notting Hill, Hallam, Carlton Gardens, Fitzroy Gardens, Mornington, Port Melbourne, North Melbourne, Kings Domain, Fawkner Park and Dallas Brooks Drive; and
(2) Green Life's Hume, Whittlesea, Melton and Kingston depots.
[5] Section 242 of the Act sets out who may apply to the Commission for a supported bargaining authorisation and the content of the application. It provides as follows:
(1) The following persons may apply to the FWC for an authorisation (a supported bargaining authorisation) under section 243 in relation to a proposed multi-enterprise agreement:
(a) a bargaining representative for the agreement;
(b) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement.
Note: The effect of a supported bargaining authorisation is that the employers specified in it are subject to certain rules in relation to the agreement that would not otherwise apply (such as in relation to the availability of bargaining orders, see subsection 229(2)).
(a) the employers that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
(2) An application under this section must not be made in relation to a proposed greenfields agreement.
[6] Section 243 of the Act sets out when the Commission must make a supported bargaining authorisation:
243 When the FWC must make a supported bargaining authorisation
(1) The FWC must make a supported bargaining authorisation in relation to a proposed multi-enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the FWC is satisfied that it is appropriate for the employers and employees (which may be some or all of the employers or employees specified in the application) that will be covered by the agreement to bargain together, having regard to:
(i) the prevailing pay and conditions within the relevant industry or sector (including whether low rates of pay prevail in the industry or sector); and
(ii) whether the employers have clearly identifiable common interests; and
(iii) whether the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process; and
(iv) any other matters the FWC considers appropriate; and
(c) the FWC is satisfied that at least some of the employees who will be covered by the agreement are represented by an employee organisation.
Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).
(2) For the purposes of subparagraph (1)(b)(ii), examples of common interests that employers may have include the following:
(a) a geographical location;
(b) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises;
(c) being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory.
Supported bargaining authorisation - declared industry etc.
(2A) The FWC must also make a supported bargaining authorisation in relation to a proposed multi-enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the employees specified in the application are employees in an industry, occupation or sector declared by the Minister under subsection (2B).
Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).
(2B) The Minister may, by legislative instrument, declare an industry, occupation or sector, if the Minister is satisfied that doing so is consistent with the objects of this Division set out in section 241.
(a) the employers that will be covered by the agreement; and
(b) the employees who will be covered by the agreement; and
(c) any other matter prescribed by the procedural rules.
(4) The authorisation comes into operation on the day on which it is made.
[7] Section 243A is not relevant in the circumstances of this case.
(1) The current scheme of supported bargaining for which Division 9 of Part 2-4 of the FW Act provides, which was effected by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act), substantially modifies the previous low-paid bargaining scheme with the objective of rendering the scheme more accessible and therefore more widely-used. This is the principal contextual consideration in the interpretation and application of s 243.
(2) Section 243(1) imposes an obligation on the Commission to make a supported bargaining authorisation if: first, an application for the authorisation has been made (s 243(1)(a)); second, the Commission reaches the required state of satisfaction under s 243(1)(b); and, third, at least some of the relevant employees are represented by an employee organisation (being an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth)) (s 243(1)(c)).
(4) As to the second precondition, the consideration required under s 243(1)(b) requires a broad evaluative judgment to be made having regard to the matters specified in subparagraphs (i)-(iv). A requirement to have regard to a matter means that, insofar as it is relevant, it must be treated as a matter of significance in the decision-making process. However, no single matter in s 243(1)(b) is to be regarded as being determinative as to whether the requisite state of satisfaction is reached.
(5) The assessment required by the matter identified in s 243(1)(b)(i) extends beyond the pay and conditions of the employees to whom the authorisation sought will apply (unless the authorisation sought would encompass the entirety of the relevant industry or sector). That will mean that, in the normal course, an applicant for an authorisation might be expected to adduce evidence concerning prevailing pay and conditions within the relevant sector. 'Prevailing' is to be given its ordinary meaning; that is, 'predominant' or 'generally current'. In relation to the words in parentheses in s 243(1)(b)(i), prima facie 'low rates of pay' will prevail in an industry or sector if employees are predominantly paid at or close to the award rates of pay for their classification, since this is the lowest rate legally available to pay.
(6) 'Common interests' is used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application. The expression 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.
(7) Section 243(1)(b)(iii) is concerned with whether the likely number of bargaining representatives is consistent with a 'manageable' - that is, workable or tractable - collective bargaining process. This requires an assessment to be made which is to some extent speculative or predictive, since the choice of bargaining representative by the relevant employers and employees may not be known at the time an application for an authorisation is considered, and weight has to be given to the scope of their capacity to choose, and change, their bargaining representatives under s 176 of the FW Act. However, the consideration required is what is 'likely' - that is, probable to happen - not what may possibly happen. Any past history of bargaining, representation at the hearing of the authorisation application, and any sameness or diversity of views amongst employees and employers concerning the prospect of multi-employer bargaining may all inform the assessment to be made. Because s 243(1)(b)(iii) is concerned with the process of bargaining, rather than the outcome, the prospect of an agreement being reached if an authorisation is made will not be a significantly relevant consideration.
(8) Section 243(1)(b)(iv) gives the Commission a broad discretionary scope as to the relevance and weight of other matters to be taken into account. The applicable objects of the FW Act in ss 3, 171 and 241 will guide the Commission in identifying those matters which may appropriately be taken into account, as will the circumstances of the particular case.
[9] The ASU relied upon the evidence of the following persons:
(1) 8 employees (7%) are paid up to 10% more than the LG Award;
(2) 61 employees (54%) are paid between 10% and 20% more than the LG Award;
(3) 39 employees (35%) are paid between 20% and 30% more than the LG Award; and
(4) 4 employees (4%) are paid between 30% and 40% more than the LG Award.
[13] Mr Williams said that in dollar terms, this translates to the vast majority of employees earning between $3 to $8 more per hour than the LG Award.
(1) 6 employees (5.36%) are paid up to 10% more than the Gardening Award;
(2) 28 employees (25%) are paid between 10% and 20% more than the Gardening Award;
(3) 48 employees (42.86%) are paid between 20% and 30% more than the Gardening Award;
(4) 18 employees (16.07%) are paid between 30% and 40% more than the Gardening Award;
(5) 10 employees (8.93%) are paid over 40% more than the Gardening Award.
[15] Citywide contends, in summary, that the ASU has failed to make out a persuasive evidentiary case for a supported bargaining authorisation. It says that such an authorisation would be inappropriate in circumstances including where:
(1) prevailing rates of pay are not assessable, and even if they were, employees of Citywide enjoy superior terms and conditions which diminishes the need to impose collective bargaining;
(2) a clearly identifiable common interest between Citywide and Green Life has not been identified; and
(3) this is not a target industry or sector where there is any need for the Commission to exercise its powers to support the processes of collective bargaining.
[16] Green Life also opposes the making of a supported bargaining authorisation. In summary, it says that it is an employer of a materially different size to Citywide and operates on a different scale, services different clients and is subject to a different underpinning industrial instrument to Citywide, being the Gardening Award. Its position is that it would not be appropriate for Green Life, Citywide and their employees to be covered by the same enterprise agreement or bargain together.
[18] The Commission is required to make the supported bargaining authorisation sought by the ASU if each of the requirements specified in s 243(1) of the Act are satisfied. It is not in dispute and I find that for the purposes of s 243(1)(a), the application has been made by the ASU, an employee organisation that is entitled to represent the industrial interests of employees in relation to work to be performed under the proposed agreement (s 242(1)(b)); the application specifies the employers and employees who will be covered by the agreement (s 242(2)); and the application is not made in relation to a proposed greenfields agreement (s 242(3)). As to s 243(1)(c), I am satisfied on the material before the Commission that at least some of the employees who will be covered by the proposed agreement are represented by the ASU.
[19] Section 243(1)(b) concerns whether the Commission can be satisfied that it is appropriate for the Employers and employees that will be covered by the proposed agreement to bargain together. The relevant considerations in s 243(1)(b) are matters to which I now turn.
The prevailing pay and conditions within the relevant industry or sector (including whether low rates of pay prevail in the industry or sector): s 243(1)(b)(i)
[32] ...This is implicit from the objects of the supported bargaining scheme in s 241, including to assist and encourage employers and employees to bargain and make agreements to meet their needs and address constraints on their ability to do so. The needs of employees who are paid at award rates include improving their terms and conditions of employment in circumstances where there have been constraints on their ability to bargain. It is also implicit that supported bargaining is a means to assist employers and employees who have been constrained from bargaining to access productivity benefits, consistent with the overarching objects in s 171. Further, this approach finds some support in paragraph [984] of the [revised explanatory memorandum] which, in relation to s 243(1)(b)(i), states:
... the prevailing pay and conditions in the relevant industry - this is intended to include whether low rates of pay prevail in the industry, whether employees in the industry are paid at or close to relevant award rates, etc;...
[33] However, in a particular case, it may be that a prevailing rate of pay which is at or close to the relevant award rate cannot be characterised as a 'low rate of pay' because the award rate itself is relatively high. For the reasons set out later in this decision, it is not necessary for us to consider this possibility in this matter, and it is best left for fuller consideration in an appropriate case.
(1) there is a reasonably high level of award dependence in the industry sub-sector, being 'gardening and horticultural services;'
(2) the Gardening Award is the 'appropriate' award for these purposes; and
(3) the Gardening Award was, in the Commission's 2013 research report on award reliance, the tenth 'most used award for setting actual rates of pay by award-reliant organisations in Australia.'
[22] The ASU submits that these matters indicate that minimum rates, or close to minimum rates, are reasonably prevalent and that conventional bargaining is not shifting rates significantly. While the ASU acknowledges that Citywide pays above award wages, it rejects the proposition that the margin is 'significant,' as Citywide contends. The ASU further submits that the prevailing conditions in this sector are those prescribed by the awards.
[24] Green Life submits that the scope of the 'gardening and horticultural services' sub-sector relied upon by the ASU is unclear as the 'metes and bounds' of that sub-sector have not been identified. Green Life says that the reference to 'industry or sector' in s 243(1)(b) is not an invitation to self-define an area of economic activity, as the ASU has done in this application. It is submitted that the statutory language reflects the use of those terms in a manner consistent with the relevant legislative instruments that sit within the broader architecture of the Act (e.g the Social, Community, Home Care and Disability Services Industry Award 2010 identifies, for instance, social and community services as a defined sector).
[25] Green Life says that the level of generality with which the ASU has defined the relevant sector in this case leads to the problem arising in this application where two employers operating under different awards are the subject of an application for an authorisation. Green Life submits that in the absence of an identifiable sector, the Commission cannot be satisfied that low rates of pay prevail. It further submits that the ASU has not explained why it has deemed the Gardening Award to be 'appropriate'; that award covers Green Life as it operates in the gardening and landscaping services industry, but it does not cover Citywide, which operates in the local government industry and is covered by the LG Award.
[26] Citywide submits, in summary, that the 'gardening and horticultural services' sector is a label that is merely descriptive of the industry that is ordinarily subject to the Gardening Award. It says that the Commission cannot properly draw conclusions under s 243(b)(i) with respect to rates of pay that are set in two different industries. It says that these rates of pay are informed by different types of employers, different work evaluations, and different wage relativities between employees. Citywide says that in circumstances where the ASU asserts that its application relates to the 'gardening and horticultural services' sub-sector, Citywide 'cannot ever' be subject to the analysis that is required in s 243(b)(i).
[28] In the present case, the relevant employees of Citywide are said to be engaged to perform work in its horticulture and open space offering. I accept the ASU's submission that 'gardening and horticultural services' serves to identify the area of economic activity in which Green Life, and the relevant aspect of Citywide's business, operates and the employees within it. It follows that I do not accept that Citywide stands outside of this application, as it contends. The material before the Commission as to the prevailing pay and conditions within the 'gardening and horticultural services' sub-sector is therefore considered in the analysis that follows.
[29] With respect to the pay and conditions relevant to employees of the Employers, the evidence before the Commission demonstrates and I find, as follows:
(1) There is a degree of clustering around classification level 3 under the LG Award, although a reasonable number of employees are also classified at award classification levels 4, 5 and 6.
(3) In dollar terms, this translates to the majority of Citywide employees earning between $3 to $8 more per hour than the LG Award.
(5) Employment conditions are otherwise set by the LG Award, which covers and applies to the relevant employees.
(1) Green life's employees are classified between levels 1 and 5 under the Gardening Award, being the award that covers and applies to their employment.
[30] The rates of pay applicable to Green Life employees are at or close to the award rate and therefore satisfy the broad notion of low rates of pay in this context. However, the same conclusion does not apply to Citywide. The vast majority of Citywide employees in the identified sub-sector are paid over-award rates of pay which are not, in my view, low rates of pay. Given the differences in this data, I cannot be satisfied that the rates paid by either Employer are representative of the sub-sector relevant to the application.
[32] I also consider the assistance of the employee characteristics report to be limited in circumstances where the report does not address the LG Award. Beyond the evidence as to the rates of pay applicable to the Citywide employees subject to this application, there is no material before the Commission as to how those rates and conditions compare to employees of other employers who fall within the ASU's identified sub-sector and who are otherwise covered by the LG Award. To the extent that the employee characteristics report provides data in respect of the Gardening Award, the ASU accepts that the report itself identifies difficulties with the data collection process for such a cohort (relating to a low sample size) making broader conclusions difficult.
[33] The ASU acknowledged that the pay data available to the Commission in the assessment of this factor is limited. This is to be compared to the decision in Re UWU where the Commission had before it undisputed material concerning the characteristics of employers and employees in the relevant sector, and information about the sector generally including in relation to employee rates of pay, qualification levels, the regulatory framework and funding arrangements. The Full Bench considered that the detailed information before it provided a reliable evidentiary basis upon which to consider the identified sector. On the evidence before me, I cannot be so satisfied. In the present case, there is material demonstrating that conditions of employment are drawn from the respective awards, but there is insufficient objective material before the Commission to conclude that low rates prevail in the identified sub-sector, even by reference to the broad meaning of the term low paid in this context.
Whether the employers have clearly identifiable common interests: s 243(1)(b)(ii)
[37] Third, the ASU submits that Green Life and Citywide provide functionally identical horticultural services, with identical equipment, skills and scope. The Employers say this is not accurate. This is because Citywide's service offering spans more than horticulture (with gardening and landscaping being only one of a suite of services it offers), and only Green Life operates exclusively in the provision of gardening and landscaping services. I accept that the gardening and landscaping services performed by the Employers are the substantially the same, albeit that gardening and landscaping services are not the only services Citywide offers.
[38] Fourth, the ASU submits that the Employers engage the same types of worker by job classification, and in terms of skills, competes in the same labour market. In this case, Green Life engages employees under the Gardening Award whereas Citywide engages employees who are covered by the LG Award. The classification descriptors in each of these awards contain different skills, competencies and expectations. The Employers' industrial coverage, while not determinative, is a relevant consideration in the assessment of common interests because while there is similarity in the work performed, the respective workforces are structured differently, under distinct industrial frameworks.
Whether the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process: s 243(1)(b)(iii)
[39] While recognising that it is a necessarily speculative task, it is not in dispute, and I find that a manageable collective bargaining process could exist if the authorisation sought is made. As matters stand, the number of bargaining representatives would be three.
Any other matters the Commission considers appropriate: s 243(1)(b)(iv)
[40] I have taken into account the following matters:
(1) The petitions before the Commission contain signatures of employees of both Employers in support of an authorisation. The petitions and the process for collecting signatures for them was the subject of evidence from three ASU organisers.
(3) The evidence of the three Citywide employees was not the subject of cross-examination. I accept that these employees hold concerns about the process adopted by the ASU in the process of obtaining signatures in support of the petitions. However, I do not accept that the concerns of these employees allow the balance of the employee signatures to be fully disregarded. It follows that I accept that the petitions demonstrate that the employees of the Employer support the making of an authorisation in significant number.
(4) The Employers oppose the making of the authorisation sought (noting that the statutory considerations do not operate by consent).
(6) Mr Mansell gave unchallenged evidence that the majority of Green Life's labour costs rely on revenue from four long term contracts. Any material increases to rates of pay, Mr Mansell deposed, would risk the loss of existing contracts or lead to a reduction of its workforce (or both).
[41] The question of whether it is appropriate to make the order sought pursuant to s 243(1)(b) requires a broad evaluative judgment about which no individual specified matter is necessarily determinative. In this case, the likely number of bargaining representatives would be consistent with a manageable collective bargaining process. The evidence before the Commission demonstrates that a substantial number of employees of the Employers have expressed support for the making of an authorisation. Further, there is an identified overlap in the services each Employer provides to a class of local government client. These matters lend support to an order being made.
[42] These matters must be weighed against other material considerations disclosed by the evidence. Here, I have not been persuaded that low rates of pay prevail in the identified sub-sector. Citywide is providing superior rates of pay to its employees when compared to both the LG Award and the Gardening Award, and there is little information beyond the circumstances of Citywide and Green Life as to the prevailing pay in the identified sub-sector more generally.
[44] While the Employers may compete commercially for the same class of client, the relationship between the Employers in relation to these clients is not joint or aligned. Rather, the Employers operate competitively in a shared market environment. Where the services provided are similar, they are delivered within materially different operational and organisational frameworks. Citywide operates a diversified and bundled service model with a broader services offering than Green Life, by which different Citywide departments work together. This, in turn, enables Citywide to offer competitive pricing. In contrast, Green Life's service offering is narrower, shaped by its more confined operational footprint. Green Life's cost base is concentrated, being primarily reliant on revenue from four key contracts, with a stated sensitivity to changes to its labour costs. These matters disclose key differences between the exposure each Employer has to local government contracts based on their size, organisational structure and revenue dependency. It follows that while competition for a class of local government client may be a shared commercial feature between the Employers, the evidence does not support a conclusion that this ultimately demonstrates shared characteristics, qualities, undertakings or concerns between them.
[45] In this case, there are further features which support a conclusion that the Employer's underpinning interests are different. Here, there is no dispute that the Employers do not share common funding requirements (s 243(2)(c)). Further, the Employers' workforces are regulated under distinct award frameworks with different remuneration structures and outcomes. While this is not alone determinative of the question of common interests, it raises considerations as to the negotiation of common terms and conditions, including rates of pay, for all of the employees given the differences in the nature of the enterprises to which an agreement would relate.
[48] For the reasons given, I decline to make the authorisation sought. The application is therefore dismissed.
L. Saunders with S. Kemppi, of Counsel, for the Australian Municipal, Administrative, Clerical & Services Union.
L. Howard, of Counsel, instructed by Maddocks, for Citywide Service Solutions Pty Ltd.
A. Crocker, of Counsel, instructed by JRT Partnership Pty Ltd, for GLG Green Life Group Pty Ltd.
Australian Municipal, Administrative, Clerical & Services Union, 21 July 2025.
[1] Produced by the ASU on 11 February 2025.
[2] Digital Hearing Book (DHB) 5 at [5].
[3] See Application by United Workers' Union, Australian Education Union and Independent Education Union of Australia [2023] FWCFB 176 (Re UWU) at [20]-[27].
[4] Re UWU [2023] FWCFB 176.
[5] Application by Shop, Distributive and Allied Employees Association [2025] FWCFB 130 (Re SDA).
[9] Exhibit 5 and Exhibit 6. The Commission is in receipt of unredacted copies of the relevant petitions, which were tendered into evidence (Exhibit 7 and Exhibit 8). The petitions were served upon the Employers in redacted form: DHB 10-64.
[15] DHB 212-213 at [11]-[15]; DHB 66 at [3].
[17] The Citywide Service Solutions Enterprise Agreement 2024 does not apply to the Citywide employees relevant to this application; see Transcript PN857-PN859.
[22] DHB 253-254 at [25]; see also DHB 67 at [5].
[23] DHB 252 at [15]-[17]; DHB 254 at [26].
[28] A profile of employee characteristics across modern awards - 2023, p.57 and chart 20; pp.73-74 and Table A2.
[29] For instance, the Social, Community, Home Care and Disability Services Industry Award 2010, the Health Professionals and Support Services Award 2020, the Clerks-Private Sector Award 2020, the Aged Care Award 2010 and the Aboriginal and Torres Strait Islander Health Workers Award 2020 may each be regarded as having application in the community services sector.
[35] The term 'prevailing' is said to be given its ordinary meaning; that is, 'predominant' or 'generally current': Re UWU at [30].
[41] Exhibit 12, Exhibit 13, Exhibit 14. See also Exhibit 10 and Exhibit 11.
[44] R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32, 180 CLR 322 at 329 (Mason J, Gibbs J agreeing); National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154 at [56].
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