The Commissioner's provisional view is that an intractable bargaining declaration should be made because the requirements in s.235(1) and (2) of the Fair Work Act 2009 are satisfied based on the application and its attachments.

The Commissioner's provisional view is that there would be no utility in specifying a post-declaration negotiating period in the circumstances of this case.

The parties are directed to confirm their position on the Commissioner's provisional views by 5:00pm on Friday, 4 April 2025**.**

If the Commissioner's provisional views are not opposed, the Commissioner intends to make the declaration and to not specify a post-declaration negotiating period.

If the Commissioner's provisional views are opposed, a Mention/Directions hearing will be listed to discuss how the application should be dealt with."

• [4] On 2 April 2025, both the AWU and Qube confirmed that they did not oppose my provisional views.

• [5] For the reasons that follow, I have made an intractable bargaining declaration (declaration) in relation to the Proposed Agreement.

• [6] There is no existing enterprise agreement that covers and applies to the employees who will be covered by the Proposed Agreement.

• [7] On 10 June 2024, Qube issued a Notice of Employee Representational Rights (NERR). The parties attended initial bargaining meetings in June and July 2024, during which time the Proposed Agreement was discussed, and logs of claims were exchanged. Numerous bargaining meetings were subsequently held.

• [8] The parties have been able to reach agreement about the terms of the Proposed Agreement except for:

• Rates of pay and wage increases.
• Sign-on bonus.
• Income protection.

• [9] The parties are considerably apart in terms of their respective positions on the outstanding issues. The AWU has taken extensive protected industrial action in support of its position. Qube's position has not shifted close to the AWU's position despite the industrial action. Qube requested that the relevant employees vote in relation to a proposed agreement in February 2025. Each employee voted against approving Qube's proposed agreement.

• [10] The parties agree that there is no reasonable prospect of agreement being reached if the Commission does not make the intractable bargaining declaration sought.

• [11] Section 234 of the FW Act enables a bargaining representative for a proposed enterprise agreement to apply to the Commission for a declaration under s.235 of the FW Act. Section 235(1) sets out the circumstances in which a declaration may be made, those being that; an application has been made, that the matters set out in s.235(2) have been satisfied, and that the application has been made after the end of the minimum bargaining period defined in s.235(5).

• [12] Qube has filed an application seeking an intractable bargaining declaration in relation to the Proposed Agreement. I find that the application has been validly made under s.235(1)(a).

Has the date of the minimum bargaining period passed? -s.235(1)(c)

• [13] In circumstances where there is no existing enterprise agreement, the minimum bargaining period is nine months from the date bargaining commenced. Qube issued the NERR on 10 June 2024. That means the nine-month period ended on 10 March 2025. The application was made on 1 April 2025. I am satisfied that the minimum bargaining period of nine months has passed.

Has the FWC dealt with the dispute about the agreement under section 240 and has the applicant participated in the FWC's processes to deal with the dispute? - s.235(2)(a)

• [14] Qube made an application[1] under s.240 on 28 February 2025 for the Commission to deal with a bargaining dispute in relation to the Proposed Agreement. On 14 March 2025, I held a conference with both parties in relation to that application.

• [15] I find that the Commission has dealt with the dispute about the Proposed Agreement under s.240. I am satisfied that Qube participated in the Commission's processes to deal with the dispute.

Is there is no reasonable prospect of agreement being reached if the FWC does not make the declaration? - s.235(2)(b)

• [16] The application sets out the following uncontested facts to establish that there is no reasonable prospect of agreement being reached if the declaration is not made:

1. The parties have been bargaining for close to 10 months.
2. The parties have attended several bargaining meetings and conferences convened by the Commission.
3. The AWU has engaged in sustained industrial action, the effects of which have largely been mitigated by Qube.
4. The parties have reached a clear impasse, and are in agreement that they have reached an impasse; and
5. The s.240 conference was unable to resolve the impasse.

• [17] Given the uncontested evidence identified above, I agree with the parties that bargaining for the Proposed Agreement is at an impasse, and there is no reasonable prospect of agreement being reached if a declaration is not made.

Taking into account the views of all the bargaining representatives for the agreement, is it reasonable in all the circumstances to make the declaration? - s.235(2)(c)

• [18] After bargaining for almost ten months, the parties both agree that the bargaining is at an impasse. I am satisfied that both Qube and the AWU support a declaration being made. There are no individual bargaining representatives.

• [19] Qube and the AWU are sophisticated industrial parties that have expended considerable resources negotiating the Proposed Agreement. The parties have been able to reach agreement on nearly all terms of the Proposed Agreement. However, the remaining issues are arguably the most important, and the parties are considerably apart in their respective positions. The AWU's extensive industrial action has not shifted Qube's position close to what it is seeking. The parties have sought assistance from the Commission but that has not brought them closer together on the outstanding claims.

• [20] I consider it is reasonable for a declaration to be made in all the circumstances. It is appropriate for the Commission to resolve the outstanding issues for the parties so the Proposed Agreement can be finalised.

• [21] I indicated to the parties that my provisional view was that it would not be appropriate to specify a post-declaration negotiating period. That was because the parties have already made considerable efforts to try and resolve the outstanding claims, and they remain far apart. The parties have agreed in writing about the limited outstanding matters that need to be determined by the Commission. I do not consider the outstanding issues could be narrowed further during a post-declaration negotiating period.

• [22] The parties did not raise any concerns with my provisional view. I will not specify a post-declaration negotiating period in the declaration.

• [23] I make an intractable bargaining declaration in relation to the proposed Qube Offshore Prelude Enterprise Agreement 2024.

• [24] The intractable bargaining declaration has been made in a separate order[2] alongside this decision and will operate from the date of this decision.[3]

[2] PR785909.

[3] Fair Work Act 2009 s.235(3)(a).

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