Fair Work Act 2009

s.234 - Application for an intractable bargaining declaration

Application for an intractable bargaining declaration - whether Commission satisfied that there is no reasonable prospect of agreement being reached if declaration not made - whether it is reasonable in the circumstances to make the declaration

[1] Employees at the Ulan underground coal mine (Mine) near Mudgee in New South Wales are presently covered by the terms of an enterprise agreement known as the Ulan Coal Mines Pty Limited Underground Enterprise Agreement 2021 (2021 Agreement). The nominal expiry date of the 2021 Agreement is 21 September 2024. The Mining and Energy Union (MEU, or applicant) has, on behalf of its members employed at the Mine, been engaged in bargaining with Ulan Coal Mines Pty Ltd (Ulan, or respondent) for a replacement agreement since March 2024. The bargaining process has not resulted in an agreement. The MEU says that the negotiations have reached an impasse. It has applied under s.234 of the Fair Work Act 2009 (Cth) (Act) for an intractable bargaining declaration (IBD). The application is opposed by Ulan.

• [2] It is necessary to determine two issues in this case. The first is whether the Commission is satisfied that there is "no reasonable prospect" of an agreement being reached if the Commission does not make the IBD.[1] The second is whether the Commission is satisfied that it is reasonable in all the circumstances to make the declaration.[2] It was not in issue that the remaining preconditions for the making of an IBD in s.235 of the Act have been met.

• [3] The Mine produces thermal coal using the longwall retreat method of mining to extract coal from the seam. There are approximately 99 production and engineering employees engaged at the Mine whose employment is currently covered by the 2021 Agreement,[3] nearly all of whom are members of the MEU and are represented by that union in the enterprise bargaining negotiations.[4]

• [4] Between 22 March 2024 and 17 February 2025, eight bargaining meetings were held between the parties. A vote of employees on a replacement agreement was concluded on 18 March 2025. The proposed agreement had not been agreed to by the MEU's bargaining committee. The vote was unsuccessful. Of the 102 votes cast, 100 employees voted 'no'. Ten employees did not vote.[5]

• [5] The current operations manager at the Mine, Mr. Johnson commenced employment at the Mine in February 2025. Following the first unsuccessful vote on the proposed agreement, Mr. Johnson spoke with Mr. Purtle, the MEU's Lodge President at the Mine and an underground operator employed at the Mine. Mr. Johnson asked Mr. Purtle to identify the key issues with the proposed agreement from the perspective of the MEU. Mr. Purtle identified 3 issues, the base rate of pay, the bonus scheme and a proposal that employees on 10.5-hour shifts would only have one paid crib break. As to the first of these issues, the MEU sought an increase to bring the rate closer to the rates paid at Ulan West, neighbouring mine. The MEU was also seeking a fixed, guaranteed bonus payment with an additional production bonus payable if production targets were exceeded. Challenging geological conditions at the Mine in preceding years had meant that production levels had reduced and with it the amount of the bonus, since the bonus was calculated on a meterage basis. The third issue was Ulan's proposal that some[6] employees could work up to 10.5 hours on any shift and receive only one 30 minute crib break rather than the two breaks currently provided for in the 2021 Agreement for shifts exceeding 10 hours.

[6] Four further bargaining meetings were held between the parties between 25 March and 26 June 2025.

• [7] In June 2025 members of the MEU commenced protected industrial action (PIA). The action commenced on 16 June 2025 and was ongoing for 15 weeks and continuous (taken every day except one) since 28 July 2025. The PIA took various forms including bans on non-rostered overtime and work stoppages of varying durations. There was a total of 43 full shift stoppages which comprised 8,600 hours and over 22,000 hours of employee claim action in total.[7]

[8] On 11 August 2025 Ulan wrote to the employee bargaining representatives with a revised proposal. The revised proposal maintained Ulan's claims regarding the 10.5-hour shift lengths and provided that double-time overtime would only be payable if an employee worked 5.5 hours consecutively (as opposed to 5 hours, which was in the 2021 Agreement). The revised proposal also introduced the following new claims:

1. An extension of the maximum shift length that an employee could be rostered to work from 12 to 12.5 hours;
2. An extension of the maximum number of hours that can be worked per week without employee agreement from the current limit of 44 hours to 48 hours;

• c. A requirement relating to work on public holidays.[8]

[9] On 19 August 2025 the MEU filed an application under s.240 of the Act for the Commission to deal with the bargaining dispute. The parties participated in 6 bargaining conferences before Deputy President Wright on 28 August, 10 September, 11 September, 24 September, 25 September and 31 October 2025.

• [10] On 10 September 2025 the MEU put forward a proposal by which they agreed to Ulan's crib break proposal and claimed wage increases of 15.5% changes to the productivity bonus and a $5,000 sign-on bonus.[9]

[11] At the bargaining conference on 25 September 2025, the MEU put the following proposal to Ulan:

1. An increase in wage rates of 6% (backdated to when agreement was reached in principle, being 25 September 2025), 5% and then 4%;

1. Increasing the maximum shift length to 12.5-hour shifts on a voluntary basis only;

1. amendments to the Meal/Crib Breaks clause, to provide for a single crib break for shifts greater than 10.5 hours, with a window for taking crib breaks between 4.25 and 5.5 hours from start of shift; and

• d. A $2,000 loyalty payment to any employees engaged at the time of the vote, payable 12 months after the vote.[10]

• [12] According to the MEU, the proposal put forward by the MEU representatives 'exceeded the MEU's mandate' and was put forward on the basis that the MEU representatives would have to take the proposal back to their members for consideration and endorsement if accepted by Ulan.[11] In cross-examination, Mr Timbs, the MEU's South Western District President, described the proposal as a "last ditch effort"[12] from the MEU to reach an agreement with Ulan. The proposal was not accepted by Ulan at the conference. The offer was 'left on the table' by the MEU.

• [13] At the same meeting Ulan put a 'package' offer[13] to the MEU. The offer included the following key elements:

• (a) Increases to wage rates of 6% upon commencement of the Agreement;[14] 5% 12 months after approval; and 4% 24 months after approval, with backpay of the first increase from the date the vote was successful;

(b) Increasing the maximum shift length to 12.5-hour shifts on weekends only; and

• (c) Amendments to the Meal/Crib Breaks clause to provide for a second crib break for shifts greater than 10.5 hours, with flexibility of crib times to be taken between 4.5 to 6 hours from start of shift.[15]

[14] The Ulan offer was not accepted at the conference.

[15] On 29 September 2025, Ulan circulated an updated version of an enterprise agreement, which it intended to take to a vote. The version of the enterprise agreement was not in the terms of the MEU's proposal put forward on 25 September 2025.

• [16] On 1 October 2025, the MEU Lodge Members at the Mine voted in favour of making an application for an IBD.[16] On the same day the MEU issued a notice to Lodge members advising that the meeting had resolved to pursue an application for an IBD and urging members to vote against the proposed agreement 'to have a major effect on the outcome of the decision of the Full Bench of the Commission.' The application for the IBD was filed on 2 October 2025.

[17] On 2 October 2025 the MEU notified of its intention to take further PIA commencing on 8 October 2025.

• [18] On 3 October 2025, Mr. Johnson wrote to the employees, saying that the vote on the proposed enterprise agreement that was scheduled to commence on 8 October 2025 would be postponed.[17] On the same date, Ulan commenced employer response action in the form of two consecutive seven-day lockouts.

[19] On 14 October 2025, Ulan re-circulated a version of the enterprise agreement which it was taking to a vote. The enterprise agreement circulated on 14 October 2025 included the following provisions:

1. An increase of the maximum shift length from 12 to 12.5 hours for employees working weekend rosters only (cl 12.3);

1. An increase of the cap on maximum weekly hours to 45 hours (cl 12.4);

1. An increase to the maximum shift length that could be worked with a single crib break, from 10 to 10.5 hours (cl 14);

1. Increases to wage rates of 6% upon commencement of the Agreement, 5% 12 months after approval, and 4% 24 months after approval;

• e. A revised bonus scheme, which increased the development rate for metres advanced by 45% to $1.45 per metre. The bonus scheme retained safety performance as a KPI.[18]

[20] On 20 October, the MEU Lodge distributed a member update in relation to bargaining and the proposed vote. The update said that the Company:

(a) was 'highlighting several unachievable targets regarding bonuses and potential earns with inflated numbers';

(b) proposed to introduce 10.5-hour shifts with one crib break, 'valued at 11.5% to us in our current EA';

(c) would bring in 'the ability to introduce temporary rosters over and above the 45-hour limit i.e. - longwall changeouts'; and

(d) was making 'many changes to our EA that will affect our conditions moving forward' including 'changes to our compassionate / bereavement leave' and 'changes to our redundancy clause'.

• [21] A second vote on a proposed agreement occurred in the period 23 and 24 October 2025. The vote was unsuccessful. There were 88 'no' votes cast out of a total of 93 votes. Six employees did not vote.[19]

[22] On 27 October 2025 Ulan requested a further conference before Deputy President Wright.

[23] On 29 October 2025 the MEU requested that Ulan provide an outline of matters proposed for discussion at the conference, 'including changes to (Ulan's) previous offer which was voted down last week.'

• [24] On 29 October 2025 Ulan wrote to Deputy President Wright's Chambers and the MEU indicating that it 'is prepared to provide a document outlining the matters it intends to discuss at the resumption of the conference, and will reserve its position with respect to any changes to its position pending progress made during the conference itself.'[20]

[25] On 30 October 2025 Ulan wrote to Deputy President Wright's Chambers copying the MEU and setting out the matters it proposed for discussion at the conference on the following day. Those matters were largely directed to the issues raised in the MEU member update of 20 October 2025. Ulan indicated it was open to progressing negotiations constructively and that if the MEU engaged in such discussions it expected 'it will be able to meet some of the concerns raised with a view to reaching agreement on the entire package.'

• [26] On 31 October 2025, the parties attended a further bargaining conference. During the conference, Ulan did not make any offer or demonstrate any movement[21] on the position it had taken to the vote. Ulan asked a number of questions at the conference. Mr Purtle responded to the questions.

Submissions - No reasonable prospect of agreement (s.235(2)(b)) and reasonable in the circumstances (s.235(2)(c))

[27] The parties made comprehensive submissions in relation to the criteria in ss.235(b) and (c). I have considered those submissions in their totality. I set out below in summary form only some of the key arguments that were developed in closing submissions.

[28] The MEU submitted that the Commission could be satisfied that there was no reasonable prospect of agreement because the parties were significantly apart on key issues and there was no realistic prospect that the position of the parties would move to an agreed compromise position. The applicant pointed to the history and duration of the bargaining process and the two resounding 'no' votes on the agreement that had been proposed by Ulan.

[29] As to whether it was reasonable in the circumstances the MEU referred to the extended bargaining process and the fact that employees had not had a pay increase since March 2023. They referred to the extensive industrial action, the deleterious impact of such action and the likelihood of further action in the event an agreement is not reached. The MEU said the opposing views of the bargaining representatives should be considered but neither view was determinative. They referred to significance of the matters over which the parties differed and the unanimous support of the MEU's membership as weighing in favour of a conclusion that the Commission could be satisfied that it was reasonable in the circumstances to make an IBD.

[30] The MEU said that the Commission ought not conclude that it had made the application for an IBD as a strategic alternative to genuine negotiations. Similarly, it was put that the criticism of the union's notice to members of 1 October urging a 'no' vote and the later notice misleadingly describing the proposed agreement's effect on working conditions, was misplaced given Mr. Purtle's explanation of the content of the notice. The MEU submitted that the material circulated by Ulan in its attempts to seek approval of their proposed agreement was itself not free from legitimate criticism.

[31] Ulan submitted that the evidence supported a conclusion that the parties were in fact not far apart on the remaining issues and had come close to reaching an agreement, particularly at the bargaining conference on 25 September 2025. They referred to evidence from Mr. Johnson and Mr. Kelly, the company's bargaining representative, as indicating a preparedness to continue with genuine negotiations to bring the matter to a conclusion.

[32] In closing submissions, in relation to the key issue of the introduction of 12.5-hour shifts, senior counsel for Ulan indicated that he had instructions to advise that the company was prepared to move on the issue and explore the MEU's proposal that those shifts be introduced on a volunteer basis. Ulan referred to and relied on Mr. Purtle's evidence to the effect that if the company withdrew the claim for the unilateral introduction of those shifts this would further the negotiations.

[33] Ulan submitted that the October 'no' vote should be given limited weight in the assessment of the prospect of agreement since the MEU had 'hijacked' the process by campaigning for a no vote to further the prospects of the Commission making an IBD. They submitted that the union had also actively misled employees including by suggesting that the company-proposed agreement would result in a reduction of redundancy entitlements, a sensitive topic for employees given the Mine's projected lifespan. Ulan submitted that the fact the union notified of further protected action the day before the application was made indicated that they considered that they could advance their position through PIA and that they did not have a view that bargaining had reached an impasse.

[34] Ulan also submitted that the correspondence to the Commission prior to the last bargaining conference demonstrated that the company wanted to continue to engage in constructive discussions to reach an agreement. Ulan referred to the uncontested evidence of Messrs Kelly and Johnson that in their assessment, the parties were close to an agreement and the real obstacle was the MEU's focus on obtaining an IBD rather than continuing negotiations. Ulan submitted that the MEU had chosen to 'strategically disengage' from the bargaining process and to undermine the voting process by diverting employees from considering the proposed agreement on its merits and instead urging them to vote 'no' on the basis that it would assist in obtaining an IBD.

[35] Ulan also submitted that they would be unfairly deprived of further access to employer response action and, given the terms of s.270A, if the matter proceeded to the workplace determination stage, the capacity to bargain for various productivity measures that they had pressed in the course of bargaining. Ulan submitted that the application had been made prematurely and had presented an obstacle to the conclusion of an agreement though the ordinary processes of bargaining.

• [36] In United Firefighters' Union of Australia v Fire Rescue Victoria[22] a Full Bench of the Commission described the 'no reasonable prospect of agreement' criterion in s.235(2)(b) as follows:

Section 235(2)(b) requires the Commission to make an evaluative judgment as to whether there is "no reasonable prospect of agreement being reached" if an intractable bargaining declaration is not made. "No reasonable prospect" is obviously not the same as "no prospect" in that it does not require a "certain and concluded determination" that an agreement cannot be reached if a declaration is not made but rather, on the ordinary meaning of the words used, requires an evaluative judgment that it is rationally improbable that an agreement will be reached. Paragraph [846] of the Revised Explanatory Memorandum (the REM) for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) (the SJBP Bill), which explains this provision, is consistent with this approach:

... This does not require the FWC to be satisfied that an agreement could never be reached but rather that the chance of the parties reaching agreement themselves is so unlikely that it could not be considered a reasonable chance. It is unlikely that the FWC would reach such a state of satisfaction unless the parties had been bargaining for an extended period and had exhausted all reasonable efforts to reach agreement, but the provision leaves it up to the FWC to determine, in all the circumstances, whether it is satisfied that there is no reasonable prospect.

[37] Much of the history of the negotiations was uncontroversial. The parties have been negotiating for approximately 20 months. There have been 12 bargaining meetings since negotiations commenced. There have been 6 conferences conducted under the auspices of the Commission in the s.240 process. Senior union officials and management personnel have been involved. There has been extensive protected industrial action on both sides consisting of approximately 22,000 hours of action over 15 weeks on the employee side commencing in June 2025 and a two-week lock-out as employer response action. Some claims have been narrowed in the course of negotiations. Some new claims have been introduced. An employer proposed agreement has been put to a vote of the workforce twice in 2025 and overwhelming rejected by the employees on both occasions.

• [38] It is apparent from the evidence that the parties remain at odds in several key respects. This includes on the issue of wage increases. Ulan offered the workforce increases of 6%, 5% and 4% at the 25 September bargaining conference and in the agreement that was put to a vote in October.[23] There have been no further wage offers since. The MEU is seeking a wage increase of 8.5%, 4% and 3%.[24] Although the total difference is only 0.5%, the fact that the parties differ in the rates at which the total percentage increase is to be phased in is an important point of distinction. The MEU is seeking a larger increase at the commencement of any agreement. This has not been agreed to. Whilst the parties narrowed the gap on wages at the 25 September conference, both parties were advancing their positions on the basis that they were negotiating a 'package' of terms,[25] the totality of which was not agreed.

• [39] The parties also disagree on the issue of a sign-on bonus. The union has sought a sign-on bonus of $5,000 which was not accepted. The company had made an offer of $1000 and then a conditional offer[26] of $2,000 which was also rejected.

• [40] The parties are apart on the structure of the production bonus. Mr. Timbs said that this bonus "is a critical part of remuneration in the coal industry, forming up to one-third of a mineworker's take-home pay."[27] He also described safety concerns with Ulan's bonus structure. The MEU had sought a minimum amount guaranteed as a bonus.[28] Ulan has not agreed to pay a fixed amount as a bonus.[29]

• [41] The parties are apart on the issue of increasing the maximum shift length for those on the weekend roster from 12 to 12.5 hours. The MEU has resisted this change since the company proposed it in August 2025.[30] Mr Timbs attested to the significance and strength of feeling amongst employees on this issue,[31] as did Mr. Purtle.[32] Mr. Timbs gave evidence as to the safety issues associated with extending a shift length particularly at a mine where employees are not accommodated on-site. I note that since its introduction, Ulan has narrowed the claim to weekend shifts only. I also note that there was a conditional compromise proposal advanced by the MEU at the conference of 25 September and left on the table which was not agreed to. This included a proposal to accept the proposed percentage wage increases and permit 12.5 hour shifts on a volunteer basis. However, as noted above, both parties advanced their proposals at the conference on 25 September on the basis that it formed part of an overall package of measures.

• [42] Although Ulan submitted that it would be 'perverse' to attempt to conduct negotiations through the hearing process, at the conclusion of the hearing an indication was given on instructions that the company now wanted to 'explore' how the MEU's 12.5-hour shift proposal of 25 September would work in practice. Whilst an expressed willingness to explore a proposal may suggest that there is some further likelihood that an agreement may be able to be reached in respect of that matter, I do not consider that in the broader context of the present circumstances, this stated willingness to consider is so material as to mean that there is now a reasonable prospect of an agreement being reached. The MEU proposal was put over two months ago and not accepted. I accept Mr. Purtle's evidence that there was no indication at the conference on 25 September 2025 to the effect that the company was prepared to move on this issue. There was a further bargaining meeting on 31 October 2025 which provided an opportunity for meaningful negotiations on this and other issues. I do not accept that the absence of Mr. Timbs from that discussion meant that the MEU was not genuine about the negotiations at that point. Whilst Ulan's stated current position is a relevant factor, the stated proposition goes no further than an offer to give some consideration to the issue. The issue remains live between the parties. I accept, as was put by the MEU, that the circumstances here are distinguishable from those in Ventia v. UFU[33].

• [43] The parties also have not agreed on the proposal to increase the shift length of the weekday roster employees to 10.5 hours with only a single crib break. Mr. Purtle was firm in his evidence that employees were very reluctant to forego the second crib break which they presently enjoy under the 2021 Agreement. The claim has been pressed by Ulan since the second bargaining meeting in April 2024[34] and is important to them. Mr. Kelly regarded this claim amongst others as 'reasonably basic'. The MEU witnesses plainly had a different view.[35] The MEU has expressed a preparedness to accommodate Ulan's position in earlier discussions[36] but again, as part of a package of measures that were not agreed.

• [44] Ulan has rejected the MEU's claim for access to arbitration in the dispute settlement clause of any proposed agreement.[37] Neither MEU witnesses were cross-examined about this issue. As a bargaining issue, the point is significant and unresolved.[38]

[45] Ulan also relied on the evidence in relation to the most recent bargaining meeting of 31 October 2025 to submit that the company remained open to continuing constructive negotiations to finalise outstanding issues and conclude an agreement. I do not think much can be garnered from that evidence to support the view that there remains a reasonable prospect of an agreement being reached. The correspondence from the company immediately prior to the last meeting was focused on obtaining an understanding of the reasons the MEU had advanced during the access period for voting 'no' in the second ballot. Whilst that is a legitimate line of inquiry to enable the company to respond to the opposition to its proposals, the evidence from Mr. Purtle which I accept, was that the meeting itself involved little more than Ulan posing these questions and him answering them. No revised offers or real progress towards a resolution were made at this meeting.

• [46] It is also important to note that these matters remain in dispute despite the extensive protected industrial action that has occurred to date. Both parties gave evidence of their capacity to mitigate the impact of protected industrial action. Mr. Johnson said that the employee action was disruptive but the company reallocated work to contractors and although the company was down on full-year production results, in some areas, notwithstanding the industrial action, production was actually above what had been budgeted.[39] The MEU has a national assistance fund from which members engaged in protected industrial action are loaned funds[40] to support them during the action. This occurred while protected industrial action was being taken at the Mine. This evidence supports the view that if the parties return to the bargaining table, any resumption of protected industrial action is likely to provide less of an impetus for the finalisation of an agreement than might be the case if the parties were more exposed to the effects of that action. A resumption of protected employee industrial action and employer response action may not necessarily drive the parties to an agreed position.

• [47] During 2025 there have been two votes on enterprise agreements proposed by Ulan which have been unsuccessful. Such expressions of employee opposition to what is being proposed by the employer would generally favour a conclusion that bargaining has reached an impasse and the prospects of agreement being finalised are limited.[41] There was no doubt cast by Ulan on the results of the ballot in March 2025. However, it was asserted by Ulan that the October voting process had been hijacked by the MEU and could not be regarded as a genuine expression of employee opposition to Ulan's bargaining position. This was because of the notice to members that was circulated by the MEU that inaccurately suggested that what was being proposed by Ulan was detrimental to employee interests in a number of respects.

• [48] It was originally asserted that employees had been misled by the inclusion of references to compassionate/bereavement leave and redundancy pay in the notice. The first of these points was abandoned after Mr. Timbs explained in cross-examination that there was a material difference between the terms of the 2021 Agreement and the proposed agreement in this respect. However, both Mr Purtle and Mr Timbs accepted that the notice incorrectly implied that there were changes to the redundancy clause being proposed which were adverse to the employees' interests. Mr. Purtle explained that the reference to redundancy arose because of members' concerns about what was said about that issue in Ulan's explanatory 'terms and effect' document.[42] It was established in cross-examination that the wording of the 'terms and effect' documents in relation to the redundancy provisions was the same in the case of the 2021 Agreement and the agreement proposed in March 2025. Further, Mr. Timbs accepted that given the status and age of the Mine, employees would be sensitive to any proposition to reduce redundancy entitlements[43] and I accept that to be the case. The MEU witnesses also accepted that there was no detrimental change proposed. However, there was no direct evidence that employees had rejected the October agreement because of the reference in the MEU notice to redundancy pay and in fact Mr. Timbs gave evidence that he could not recall it being raised at the meetings of employees at all.[44] Mr. Purtle said that the main reasons he heard after the vote for employees voting 'no' were the wage offer, sign-on fee and the temporary roster rule.[45] Mr. Purtle also gave evidence which I accept, that the concern had come from members and after he had obtained clarification from Mr. Johnson and before the vote, he had asked the Lodge delegates to 'spread the word' that the redundancy provision was no longer an area of concern.[46] It is reasonable to infer that this albeit imperfect attempt to rectify the situation, would have at least to some extent, alleviated concerns for some employees who participated in the second vote.

• [49] Whilst I accept that the reference to redundancy provisions in the notice may have had some impact on the voting intentions of the workforce, I think the overall significance of that issue in the broader context of the issues in dispute does not mean that the outcome of the October ballot can be discounted in the assessment of employee attitudes to Ulan's position. That attitude of opposition is consistent with the earlier 'no' vote and reflected in the meeting of 73 employees who met on 1 October 2025 and resolved unanimously to support an application for an IBD.[47] In this latter respect I accept the MEU submission that the support for an IBD evidences that after many months of negotiations, employees remained resolutely opposed to the position being advanced by Ulan.

[50] I am also of the view that the duration of the bargaining process and the extensive negotiations that have occurred weigh in favour of a conclusion that there is no reasonable prospect of agreement being reached if the Commission does not make the IBD.

[51] On balance, I am satisfied on the evidence that there is no reasonable prospect of agreement being reached if the Commission does not make the IBD.

• [52] The question under s 235(2)(c) of whether it is reasonable in all the circumstances requires the Commission to make an evaluative judgment, considering, for example, the dispute in the context of the whole of the relationship of the parties, the history of the bargaining, the conduct of the parties, the prevailing economic conditions, and the bargaining environment.[48] The assessment is to be made taking into account the views of all of the bargaining representatives for the agreement. The assessment of reasonableness is not to be undertaken with an attitude of reticence or disinclination to make a declaration.[49]

[53] I accept from the MEU's submissions that the fact that the employees covered by the 2021 Agreement have not had a pay rise since March 2023 and have had only a temporary improvement to conditions in relation to the bonus floor, is a relevant consideration in this assessment and weighs in favour of a conclusion that it is reasonable to make an IBD. I also note that bargaining has been going on for a considerable period of time without producing a result. I am not persuaded by the submission that it is not reasonable to make an IBD because bargaining in the coal mining industry typically takes a long time. I must consider the circumstances in the matter before me and the reasonableness or otherwise of an IBD having regard to those circumstances. Although there may be some common factors at play in the bargaining processes in a particular industry, calls for such comparisons should be approached with caution. It would be wrong to assume that the existence of other lengthy disputes in the industry automatically favoured a conclusion that it was not reasonable to make an IDB in this case. In any event, the evidence here as to other disputes in the industry does not provide a sufficient basis to draw any relevant inferences here.

• [54] As to the views of the bargaining representatives, the MEU is obviously of the firm view that an IBD should be made for the reasons articulated by Messrs Timbs and Purtle. Conversely, Mr. Kelly's view was that an IBD should not be made because the parties were not far apart and that a number of outstanding issues were 'reasonably basic'. He said the IBD application had served as a 'distraction' from the business of bargaining for and finalising an agreement. Mr. Kelly is an experienced negotiator, as is Mr. Timbs. These views must be treated as matters of significance but neither view is determinative.[50] I have taken them into account in the assessment of reasonableness in all of the circumstances. I have also taken into account the widespread support for the making of an IBD amongst MEU members at the meeting of 1 October 2025[51] whilst noting that such views are also not determinative and the test remains an objective one.[52]

• [55] I do not consider that the exercise of the right to take protected industrial action by both parties that has occurred to date weighs appreciably either for or against a conclusion that it is reasonable in the circumstances to make an IBD here. The parties have exercised rights that are available to them under the Act in the course of the bargaining process and there is no basis to conclude that either party acted unreasonably or outside the scope of lawful conduct contemplated by the Act. I have however taken into account the potential consequences of making or not making an IBD.[53] One consequence of making an IBD is that a workplace determination will likely follow. In my assessment one likely consequence of not making an IBD is that further protected industrial action will follow.[54] Although parties have demonstrated some capacity to mitigate the effects of that action as described above, some disruption and loss, including lost wages and working hours will also almost inevitably follow from the resumption of protected industrial action.

• [56] Ulan submitted that they have not yet been able to exert meaningful industrial pressure, that the making of an IBD would unfairly deprive them of the right to take further employer response action and involve an inappropriate interference with the scheme and objects of the Act relating to bargaining. I do not think there is much force to this submission. The employee action commenced in June 2025 and response action has been available to Ulan for many months. Ulan elected to commence response action in October 2025. The making of an IBD will remove access to protected industrial action for both parties.[55]

[57] Ulan also submitted that it would not be reasonable in the circumstances to make an IBD because the MEU had 'strategically disengaged' from the bargaining process and engaged in misleading conduct in relation to the second vote and the pursuit of an IBD for which it should not be 'rewarded.' I do not accept that the evidence makes good this submission. In APESMA the majority of the Full Bench said:

....It is possible that, in a particular bargaining process, one bargaining representative might adopt an approach of attempting to hold out in the hope of a better outcome in the arbitration resulting in the making of a workplace determination. If a bargaining representative adopted the type of strategy envisaged by the Deputy President, that factor is likely to be relevant to the assessment of reasonableness for the purposes of s 235(2)(c). If an applicant for an intractable bargaining declaration had not participated genuinely or constructively in bargaining, that might support a finding that it was not reasonable to make a declaration in all the circumstance. There is, however, no suggestion in this matter that APESMA, or the Deputies, did not participate appropriately in bargaining in this matter.[56]

[58] There is no doubt that the MEU has been engaged in genuine bargaining with Ulan over many months. The decision to pursue an IBD was taken only very recently in the process and was endorsed by the MEU's members on 1 October 2025. I am satisfied on the evidence of the MEU that they have remained prepared to engage in genuine negotiations, including at the meeting of 31 October 2025 which was after the IBD application was made. I do not accept that there has been 'strategic disengagement' on the part of the MEU. The option of seeking an IBD is available to the parties under the Act and one that the MEU has exercised on the basis of their assessment of the status of the negotiations. I accept, as did Mr. Purtle, that the notice to members inaccurately suggested that redundancy entitlements of employees were in jeopardy in the second vote. However, I also accept Mr. Purtle's explanation as to how and why this occurred and the steps that he took to rectify the situation. I do not think that evidences 'strategic disengagement' or that the making of an IBD would be unreasonable in the circumstance because it would 'reward' the MEU for poor conduct or deliberate disengagement from bargaining processes.

[59] As to the submission that it would be unreasonable to make a declaration because the operation s.270A may deprive Ulan of the opportunity to press for productivity measures at the workplace determination stage, I do not propose to speculate as to what may ultimately be at issue and how a Full Bench may deal with any separate workplace determination process that may follow from these proceedings. The parties have conducted their bargaining in the knowledge that the Act sets certain parameters to the workplace determination process should they be unable to finalise an agreement by negotiation. That includes the provisions in s.270A. In any event, even taking the respondent's submission at its highest, I do not consider that this factor would tip the evaluative exercise in Ulan's favour on the question of reasonableness having regard to the circumstances as a whole.

[60] I am not otherwise persuaded by the arguments advanced in opposition to the making of an IBD on reasonableness grounds. I am satisfied that it would be reasonable in all of the circumstances to make an IBD and propose to do so. The preconditions for the making of an intractable bargaining declaration pursuant to s.235(1) have been met. In the exercise of any remaining residual discretion, there is no matter which I can identify which would weigh against making an IBD.

[61] Section 235A of the Act provides that the Commission may specify a post-declaration negotiating period if it considers it appropriate to do so. I am of the view that such a period is appropriate in the circumstances and propose to order that there be a post-declaration negotiating period commencing on the day the declaration is made and ending 21 days after that date. An order in these terms will be published separately with this decision.

Mr C Tran with Ms. E Kneebone of Counsel for the applicant, instructed by Mr. A Sage MEU.

Mr J Murdoch King's Counsel for the respondent, instructed by Mr. J de Flamingh, Corrs Chambers Westgarth.

[8] Exhibit A2 at [38] and following and Exhibit R4 at [42].

[14] C.f. Mr. Johnson said the first increase was to be recognised from the day after a successful vote.

[15] Exhibit R5 at [33]. See also Exhibit R4 at [51].

[18] Exhibit R4 at [57] and following and Annexure JJ 8.

[22] [2023] FWCFB 180; (2023) 326 IR 230 at [29] (Hatcher P, Asbury VP and Hampton DP). See also Transport Workers' Union of

Australia v Cleanaway Operations Pty Ltd (2024) 329 IR 238 at [10] (Saunders DP, Wright DP and Crawford C).

[25] Exhibit A1 at [43] and [48], Exhibit R5 at [42], Respondent's Outline of Submissions 7/11/25 at [12] and [32], Exhibit R4 at [51] and Exhibit A1 at [7].

[33] See [2023] 328 IR 377 at [87] to [93].

[35] Exhibit A1 at [26] Exhibit A2 at [45]..

[36] See Exhibit R4 at [48] and [52].

[37] Exhibit A2 at [51] Exhibit A2 at [45].

[38] As to such terms as part of a workplace determination see Commonwealth of Australia as represented by the Department of Home Affairs [2019] FWCFB 143 at [541] - [542].

[40] Which loans, Mr. Timbs accepted, were rarely called on for repayment.

[41] See Australian Salaried Medical Officers Federation v Australian Capital Territory [2024] FWC 3117 at [13] (one unsuccessful vote; 86%); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others [2024] FWC 3063 at [10] (one unsuccessful vote); Network Aviation Pty Ltd as Trustee for The Network Trust t/as Network Aviation Australia v Australian Federation of Air Pilots, Australian and International Pilots Association & Transport Workers' Union of Australia [2024] FWC 685 at [166] (three unsuccessful votes in 18 months); NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust t/a Transgrid v CEPU [2024] FWC 2841 at [65] (two unsuccessful votes); Transdev Sydney Pty Ltd, Great River City Light Rail Pty Ltd v Australian Rail, Tram and Bus Industry Union [2024] FWC 3594 at [29] (three unsuccessful votes); Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd (2024) 329 IR 238 at [100] (two unsuccessful votes)

[48] United Firefighters' Union of Australia v Fire Rescue Victoria [2023] FWCFB 180; (2023) 326 IR 230 at [30].

[49] Association of Professional Engineers, Scientists and Managers Australia v. Ulan West Operations Pty Ltd [2025] FWCFB 264 at [59] and [66] per Gibian VP and Butler DP.

[50] United Fire Fighters op cit at [31] and APESMA at [56].

[52] Transport Workers' Union of Australia v. Cleanaway Operations Pty Ltd [2024] FWCFB 127 at [11].

[54] See for example Exhibit A2 at [58].

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