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[64]
[2026] FWC 734
General information, not legal advice.
Fair Work Commission
2026-03-10
Original judgment source is linked above.
s.437 - Protected action
Australian Municipal, Administrative, Clerical and Services Union
Proposed protected action ballot of employees of 8 Melbourne councils who are subject to the single interest authorisation issued in B2025/498 - whether genuinely trying to reach agreement - non-AEC ballot electronic voting
[2] On consequence of the SIEA is that the ASU is permitted to make an application for a protected action ballot order (PABO) in relation to all eight Councils. The ASU has made such an application in relation to each Council. The Councils oppose the application. By section 441 of the Fair Work Act (Act), the Commission must, as far as practicable, determine such an application within 2 working days after the application is made.
[3] Section 443 sets out two requirements that, if met, mean the Commission "must" make a PABO. This decision concerns a dispute regarding the requirements of section 443(1)(b), which requires the Commission to be satisfied that the ASU "has been, and is, genuinely trying to reach an agreement" with each Council. The heart of the Councils' objection is their contention that:
[4] Each party filed evidence and submissions. The ASU filed a witness statement of Zoe Edwards. Ms Edwards is the Deputy Branch Secretary of the Victorian and Tasmanian Authorities and Services Branch of the ASU. The Councils relied upon a witness statement of Christopher Ralph and some documentary material. Mr Ralph is the person appointed by the Councils as their Bargaining Representative, a position he has held since 2 January 2026.
[5] The key chronological events referred to by the parties in their evidence were largely undisputed, although differing emphasis was placed by each side on certain facts.
[6] The industrial history of the Councils has involved single-enterprise agreements for many years. As it concerns the ASU, Ms Edwards says that the ASU has a long history of bargaining for single enterprise agreements with the Councils. The enterprise agreements currently covering the respective Councils have applied since around 2022. Their nominal expiry dates each fell due in mid-2025.
[7] Amendments were made to the Act in 2023. Among other matters, those amendments permitted parties to take a much wider remit of industrial action in connection with bargaining against multiple employers at the same time. At around that time, the ASU resolved to pursue multi-employer bargaining in respect of local councils in Victoria.
[8] On 20 March 2025, the ASU filed an application with the Commission for a SIEA, which was allocated to me. That application was initially opposed on a number of grounds.
[9] Throughout 2025, the ASU undertook a significant amount of work to develop a log of claims for multi-enterprise bargaining with various councils. A log of claims was approved by ASU members in May 2025. Among other matters, that log of claims identified a core set of harmonised, priority claims and the sections of any proposed agreement with specific terms and conditions for each employer.
[10] On 6 October 2025, while the SIEA application was before the Commission, Ms Edwards states that the ASU had been notified that each of the Councils, other than Darebin City Council, would consent to the ASU's application for a SIEA. Reflecting this assumption, the ASU wrote to the Councils on 20 October 2025 to invite them to "an initial/informal meeting to progress discussions for the multi-employer agreement". A meeting was proposed for 6 November 2025 and the ASU's purpose of the meeting was "to discuss and agree to the ground rules for how negotiations can proceed". Some subjects the ASU intended to raise at the meeting included chairing of meetings, representation at meetings, frequency of meetings, and bargaining administration and document control. The Councils were invited to raise any other topics.
[11] While the "consent" Ms Edwards describes perhaps overstates matters somewhat, it was not overly so. Correspondence from the Councils' solicitors dated 24 October 2025 described the "provisionally consenting" councils and indicated that, at the time, the provisional consent rested upon resolution of two sets of jurisdictional objections that were presently reserved before the Commission. The correspondence also stated the Councils' view it was "too early to commence discussions regarding the conduct of future bargaining (so far as this relates to the SIEA)." Nonetheless, the correspondence referred to the preparation of an Agreed Statement of Facts in connection with the SIEA application. The Councils further indicated their preference to "appoint a third-party facilitator (such as an ex-Fair Work Commission member) to help expedite bargaining". The Councils' position was the appointment of such a facilitator would need to take place prior to the meeting proposed by the ASU.
[13] By around this time, the ASU was also undertaking further internal preparatory work by drafting proposed enterprise agreement clauses to give effect to their claims.
[14] In correspondence between the parties in November 2025, a sticking point became the apportionment of costs of the facilitator between the parties. There is nothing in that correspondence indicating any party behaving unreasonably as to the cost-apportionment issue but, at that time, it was not agreed. A consequence of it not being agreed was that the ASU's proposal for informal discussions did not go ahead.
[15] Other aspects of the "consent" position were clearly firming up, however. By the beginning of December 2025, the Councils' solicitors indicated they expected to provide the ASU with "an updated version" of the Agreed Statement of Facts that week.
[16] The Agreed Statement of Facts was finalised between the parties and provided to the Commission on about 18 December 2025 for the purpose of supporting the ASU's application for a SIEA.
[18] On 23 December 2025, the ASU wrote to the Councils. Among other matters, the ASU correspondence:
[19] On 24 December 2025, the Councils informed the ASU that Mr Ralph had been appointed as their bargaining representative.
[20] On 2 January 2026, the ASU wrote to Mr Ralph to invite him to a proposed meeting on 13 January 2026. I note Mr Ralph appears to have been on leave at the time. Mr Ralph responded the following day and said he was unavailable on 13 January 2026. He also indicated his view it was too early to commence formal bargaining on 13 January 2026, in part because he was only just returning from leave, in part because he needed to meet with the Councils' representatives for the "first time" and in part to consider alignment between the Councils for their decision-making process. Mr Ralph proposed a meeting in the week commencing 19 January 2026.
[21] On 5 January 2026, the ASU replied and agreed to a meeting on 19 January 2026.
[22] On 13 January 2026, the Lead Organiser for the ASU followed up with Mr Ralph and suggested a meeting time of 2pm on 19 January 2026, to be conducted by Microsoft Teams.
[23] On 14 January 2026, Mr Ralph replied. He indicated that he had started meeting with the Councils and would continue to do so over the coming weeks. He said, however, that the best dates for a meeting with him were now the afternoon of 20 or 28 January 2026. The same day, the ASU responded to confirm a meeting for 20 January 2026.
[24] The meeting on 20 January 2026 went ahead as scheduled although it appears little was achieved. During that meeting, Mr Ralph confirmed that he still had to meet with some of the Councils and also said he would provide the ASU with an update following his first group meeting with the Councils, which was scheduled for later that week. At the meeting on 20 January 2026, a representative of another union - the Australian Nursing and Midwifery Federation (ANMF) - was also in attendance. Other unions did not attend this meeting.
[25] On 22 January 2026, Mr Ralph sent a further email to the ASU. In that email, he outlined that a further 2 - 3 weeks was needed for him to understand the industry perspectives and preparatory work to be undertaken. The preparatory work would include the "establishment" of a core bargaining team and "further consideration/articulation of Councils' perspectives re MEA objectives & structure/format, and bargaining protocols."
[26] Also on 22 January 2026, the solicitors for the Councils wrote to the ASU seeking to discuss resolution of the cost-apportionment issue for a third-party facilitator, which had not yet been resolved. At that point in time, the Councils' position on costs was for the Councils to jointly pay fifty percent of costs and the ASU the other fifty percent. By contrast, the ASU's position was for the ASU and eight Councils to share the costs evenly (i.e. one-ninth each).
[27] Evidently the Councils shifted from their initial position on the cost allocation for a facilitator or chair, which was acknowledged by the ASU in an email to Mr Ralph the following day. Also in that email, the ASU indicated that once the chair has been engaged, meetings should commence at the earliest practicable opportunity. The ASU further indicated "in the meantime" it was open to discussing the ASU's proposed ground rules but the ASU reiterated it did not "wish to see the commencement of meetings delayed for any reason".
[28] On 2 February 2026, the cost-apportionment issue was resolved.
[29] The following two weeks saw further exchanges of correspondence regarding the appointment of a chair. By 18 February 2026, the parties had formally engaged Ms Michelle Bissett (a former member of the Commission) as the facilitator or chair for the bargaining process between the parties. The final two weeks of February involved preliminary meetings with the newly-appointed bargaining chair. The period also saw the parties agree to a meeting on 5 March 2026.
[30] It is unnecessary to set out the back and forth of that correspondence but a fair reading of the correspondence in February 2026 demonstrates a greater capacity and desire on the ASU's behalf for bargaining to commence very promptly. For avoidance of doubt, there is nothing in the material that I consider indicates that the Councils were acting unreasonably or were engaging in "delaying tactics" (being an accusation made by the ASU as part of its PABO application). There is, in effect, a misalignment between the ASU's capacity to bargain quickly and the Councils' capacity to do so. I will return to this issue.
[31] Although the timing is not entirely clear, it appears from the evidence that the ASU had determined to make its application for a PABO some short time before the meeting on 5 March 2025. Ms Edwards explains why the ASU intended to make the PABO application in her statement. There were two clear themes concerning her beliefs (which I accept are sincerely held), namely her view and ASU members' views that negotiations were proceeding too slowly and to create public pressure for more funding of local councils to pay for their wage claims.
[32] On 5 March 2026, the first formal bargaining meeting took place (now overseen by the bargaining chair). Mr Ralph was in attendance for the Councils along with three other Council representatives. There were representatives from four unions. It is not clear if there were any other employee bargaining representatives.
[33] Mr Ralph's evidence contains a brief summary of the meeting on 5 March 2026. He says the agenda of the meeting was to table and progress discussions on bargaining process and communication and access protocols, as well as to schedule further meetings (the next of which was scheduled for 24 March 2026). Mr Ralph says that, at the time of preparing his witness statement, the Councils and four unions have yet to agree on "the bargaining, communication and access protocols". Mr Ralph's evidence is also that the Councils will lodge their log of claims at the meeting on 24 March 2026, although this specific commitment does not appear to have been made at the meeting on 5 March 2026.
[34] Separately to the above matters, the Councils rely on various public communications made by the ASU to the effect that it intended to use its industrial power available through multi-employer bargaining to pressure the Victorian state government to make changes to local council funding arrangements with the ultimate aim of funding the ASU's pay claims. The communications were made from the beginning of 2025 through to March 2026 to that effect. For example, on 28 August 2025, the ASU issued a statement (made in the context of supporting a 'yes' vote for multi-employer bargaining) stating its intention to "use our unprecedented industrial power to pressure the state government to fix the problems caused by the rate cap and ensure local government is properly funded; to fight for historic pay rises and set the standard for local government employment." I also return to this issue below.
[35] On 5 March 2026, the ASU made its application for a protected action ballot order.
[36] The issue in dispute is whether the ASU "has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted."
[37] There are now numerous authorities that make clear that the Act does not prescribe a particular stage of bargaining that must be reached before an applicant is said to be "genuinely trying" to reach an agreement with the employer: see, for example, JJ Richards and Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297 (JJ Richards) at [30]-[31] (Jessup J), [33] (Tracey J), and [58] (White J). Since JJ Richards, that position was modified by a strict requirement that an application for a PABO cannot be made before there has been a "notification time" (which in this case was the date the SIEA was made): section 437(2A).
[38] Section 443(1)(b) was recently considered in some detail by a Full Bench of the Commission in Kuiper Australia Pty Ltd v The Australian Workers' Union [2024] FWCFB 378 (Kuiper).
[39] The concept of "genuinely trying" involves, firstly, a consideration of what steps have objectively been undertaken to reach an agreement with the employer. It is not solely directed to the sincerity or motive of the applicant (although the absence of these characteristics may be relevant). As the Full Bench observed, relying upon JJ Richards, "The concept of trying will, at least in some instances, require more. Simply desiring that an agreement be made without taking any step to seek to achieve that outcome may fall short of "genuinely trying to reach agreement". To "try", as a matter of ordinary language, means "to attempt to do or accomplish". If a party has taken no steps to further the objective of making an agreement, the Commission may not be satisfied it is genuinely trying to reach agreement because it has not attempted to do so."
[40] On the distinction between what a party has been doing and its intention for doing it, the same Full Bench in Kuiper observed (my emphasis) that "the assessment required by s 443(1)(b) is concerned with what the applicant is and has been doing. It must concentrate on whether the Commission is satisfied that the applicant, having regard to evidence of its intentions and actions considered in the context of the overall circumstances, is genuinely trying to reach agreement."
[41] The issue of an extraneous purpose was identified by a Full Bench of the Commission in JJ Richards & Sons Pty Ltd v TWU [2010] FWAFB 9963; (2010) 202 IR 180 at [63] (the decision considered by the Full Court in JJ Richards, above). In Application by The Australian Workers' Union [2024] FWC 2376 (being the decision upheld on appeal by the Full Bench in Kuiper), Deputy President O'Keeffe gave an example where the purpose of industrial action was not to reach an agreement but instead was to "prolong the bargaining process" in a "form of surface bargaining": see Kuiper at [35]. There will no doubt be other examples that might be given.
[42] Returning to the factual background before me, I am satisfied that the ASU has been genuinely trying to reach an agreement - being a multi-employer agreement - with the Councils. At least as far back as October 2025, there was provisional consent by the Councils to a multi-employer agreement. That consent firmed up in November 2025. During this process, the ASU was actively attempting to advance the process of bargaining and asked "to discuss and agree to the ground rules for how negotiations can proceed". While the ASU was rebuffed at that stage, I do not consider it ought to be a matter counting against the ASU's attempts to progress matters to reach an agreement with the employers.
[43] Upon the making of the SIEA on 22 December 2025, the ASU served its log of claims the following day. One element of complexity in the log of claims was the ASU's consideration of what would be "core" or common terms and what terms would be employer-specific. Concurrently, the ASU was again now seeking to commence the formal bargaining process as soon as possible. Again, I consider a fair objective assessment of these actions supports a conclusion that (by March 2026), the ASU has been and still is genuinely trying to reach an agreement with the employers.
[44] The delays that followed the delivery of the log of claim up until the first "formal" meeting on 5 March 2026 were explicable although evidently a cause of frustration to the ASU. In part, there was a residual delay while the parties negotiated on the cost apportionment for a bargaining chair (and I repeat my observation that neither party's cost proposal was an unreasonable position). There were also delays on the Councils' behalf as it sought to coordinate among themselves, including during the Christmas break. I indicated my view above that there was nothing to suggest any "delaying tactic". No doubt the ASU's frustrations with the delays were sincerely held but I consider they rested on slightly unrealistic expectations at the speed at which the Councils could move. At least in my observation, a single local council is often attended by a degree of bureaucratic inertia. While the ASU had success in obtaining the agreement of eight councils to the SIEA, my expectation is that the bureaucratic inertia between them will increase. The Councils also contend that the ASU is being unrealistic, and points to the fact that it required the ASU to undertake 24 meetings in the first half of 2025 before it was able to produce its log as indicative of the time it might require the Councils to do the same.
[45] These are not matters I consider that count against the ASU in my assessment of whether it was and is genuinely trying to reach an agreement with the Councils. The fact that the ASU made its application contemporaneously with the first formal bargaining on 5 March 2026 does not, of itself, detract from my conclusion that a fair assessment of the ASU's attempts to that date demonstrate that it has been, and still is, genuinely trying to reach an agreement with the employers for a multi-employer agreement. A point that is supportive of the ASU's application is that since the SIEA was made and the ASU served its log of claims, nearly a quarter of a year will elapse before the parties are closer to agreeing "bargaining, communication and access protocols". Again, while I consider many of those delays are explicable, that does not lead to a conclusion that the ASU has not been genuinely trying to reach an agreement with the employers. The context also includes the fact that the statutory period for a SIEA is 12 months (albeit it is capable of extension). I accept the ASU's evidence of its strong desire for negotiations to proceed faster.
[46] The one possible caveat to the above conclusions is the Councils' contention that the ASU's PABO application is infected by an impermissible extraneous purpose. I accept on the material before me that a material purpose of the ASU is to seek change to the funding arrangements of local councils that are presently outside the control of those councils. The reason for those changes is, presumably, to in turn obtain increased revenue for councils to ultimately pay for the ASU's wage claims. Plainly, there are matters of public policy involved in such decisions and they are largely outside of the remit of the Councils themselves. I also have little doubt that, as bargaining progresses, the Councils will be raising their funding constraints as an answer to the ASU's (and other unions') wage claims. I consider that the wage claims and funding constraints are, in a real sense, flip sides of the same coin.
[47] The Councils contended that the timing of the PABO application heightens its claim that the ASU is pursuing industrial action for a collateral or extraneous purpose. The specific timing is the current preparation of the Victorian state budget (which is apparently due to be finalised in April 2026).
[48] At least for the purposes of section 443(1)(b), I am satisfied, notwithstanding the ASU's collateral purposes, the ASU is genuinely trying to reach agreement with the Councils. If the contrary position were the case, it is difficult to conceive how the ASU could ever satisfy the requirements of section 443(1)(b) so long as decisions constraining the revenue sources of local councils continued to be exercised by the State government.
[49] The Councils further contend that industrial action pursued for the purposes of effecting a change to government policy to increase funds to local councils is not a "permitted matter". The term permitted matter is defined in the Act by reference to section 172(1). As the Councils correctly point out, section 409 of the Act includes a requirement that "employee claim action" can "only" be about, or be reasonably believed to be only about, permitted matters.
[50] I do not consider that section 443(1)(b) imports a requirement, which is at the ballot application stage, to make a close assessment of whether the action, if approved and taken in a particular context, could only be about, or be "reasonably believed to be only about", permitted matters. The test under section 443(1)(b) is and remains whether the applicant has been and is genuinely trying to reach an agreement with the relevant employer. For the reasons given above, I am satisfied that the ASU meets those requirements. I express no views on any future dispute concerning section 409, should any such dispute arise.
[51] The group of employees to be balloted at each employer are those employees who fall within the scope of the SIEA and clause 3 of the orders made in this matter.
[52] I am satisfied for the foregoing reasons concerning section 443(1)(b). On the basis of the material before me, including the declaration of Ms Edwards, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in section 443(1)(a) of the Act have been met.
[53] The ballots are to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under section 468A of the Act and consequently is authorised to conduct the ballots.
[54] For the purposes of section 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in each ballot is 27 March 2026. The ASU initially sought a period ending 19 March 2026, although I am satisfied in the present case it will be prudent to provide the Councils slightly more time to comply with the steps they are to take, as well as Commission availability to conduct a conference. This also establishes the ballot period for the purpose of section 448A(2) of the Act.
[55] In conjunction with this Decision, an Order for each individual employer will be issued progressively and the details of print numbers are also set out below in Appendix A.
[56] I observe for completeness that as this matter involves bargaining for a multi-enterprise agreement, section 414 of the Act provides that the minimum period of written notice for any industrial action will be 120 hours.
[57] The Commission will need to conduct the section 448A compulsory conciliation conference involving all relevant parties. An Order will shortly be issued requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference.
C. Viney of Counsel, instructed by Maurice Blackburn Lawyers, for the ASU.
L. Howard of Counsel, instructed by Maddocks for the Respondent Councils.
Appendix A - the employers and their previous agreements
Darebin City Council Enterprise Agreement 2022 - 2025
Greater Dandenong City Council Enterprise Agreement (EA) 2022
Hobsons Bay City Council Enterprise Agreement 2021
Hume City Council Enterprise Agreement No. 8 2021 - 2025
Maribyrnong City Council Enterprise Agreement 2022 - 2025
Moreland City Council Enterprise Agreement 2021 (EA 2021)
Yarra City Council Enterprise Agreement 2021 - 2025
[1] For the SIEA: B2025/498 (PR795283). For the decision to grant to SIEA: Application by Australian Municipal, Administrative, Clerical and Services Union [2025] FWC 3904.
[2] Application by Australian Municipal, Administrative, Clerical and Services Union [2025] FWC 1466.
Printed by authority of the Commonwealth Government Printer
Australian Municipal, Administrative, Clerical and Services Union
Darebin City Council and Ors [2026] FWC 734
(2012) 201 FCR 297
(2010) 202 IR 180