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[2026] FWC 807
General information, not legal advice.
Fair Work Commission
2026-03-17
Original judgment source is linked above.
s.242 - Application for the FWC's approval of a supported bargaining authorisation
Application for a supported bargaining authorisation regarding a proposed multi-enterprise agreement to cover the employees of two named employers engaged within the cleaning services industry operating within Victoria - authorisation issued.
[1] On 21 November 2025, the United Workers' Union (UWU) filed an application under s 242 of the Fair Work Act 2009 (Cth) (Act) for a supported bargaining authorisation. The UWU seeks that the authorisation covers the following employers, each of which perform school cleaning services to the Department of Education (Victoria):
[2] The application also specifies that the employees who will be covered by the proposed multi-enterprise agreement are all employees of ISS and Menzies (employees).
[3] There is no dispute that the employers specified in the application are all 'national system employers' within the meaning of s 14 of the Act.
[4] The employers and employees who would be subject to the authorisation are either covered by the Cleaning Services Award 2020 (Cleaning Award) or the ISS Facility Services and United Voice Cleaning Services Enterprise Agreement 2017 (ISS Agreement).
[5] The employers are not opposed to, and support the making of, the authorisation sought in the application.
[6] The application was subject to a hearing on 12 March 2026. The application was not contested by ISS and Menzies (employers). The decision was reserved.
[7] From 6 June 2023, Part 20 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) amended Division 9 of Part 2-4 of the Act to introduce a new scheme enabling parties to apply for a 'supported bargaining authorisation' for the purpose of making a 'supported bargaining agreement', replacing the former low-paid bargaining scheme. The key provisions are ss 241, 242 and 243:
(a) to assist and encourage employees and their employers who require support to bargain, and to make an enterprise agreement that meets their needs; and
(c) to address constraints on the ability of those employees and their employers to bargain at the enterprise level, including constraints relating to a lack of skills, resources, bargaining strength or previous bargaining experience; and
(d) to enable the FWC to provide assistance to those employees and their employers to facilitate bargaining for enterprise agreements.
(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.
(3) An application under this section must not be made in relation to a proposed greenfields agreement.
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.
[8] Section 243A provides for restrictions on the power to make a supported bargaining authorisation, none of which is applicable in this case.
[10] I am required to make the supported bargaining authorisation sought by the UWU if each of the requirements specified in paragraphs (a), (b) and (c) of s 243(1) of the Act are satisfied. In relation to s 243(1)(a), it is not in dispute that the application in this matter has been made in accordance with the requirements of s 242, in that the UWU is 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), the agreed statement of facts establishes to my satisfaction that at least some of the employees who will be covered by the proposed agreement are represented by the UWU.
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)
[11] In Application by UWU, AEU and IEU, the Full Bench stated:
"[30] Second, the consideration identified in s 243(1)(b)(i) requires us to have regard to the 'prevailing pay and conditions within the relevant industry or sector'. The reference to 'the relevant industry or sector' plainly indicates that the assessment required will extend 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 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' might or 'generally current'.
[31] The words in parentheses in s 243(1)(b)(i) require consideration to be given as to whether 'low rates of pay' prevail in the industry or sector. It is to be noted that the legislature has chosen to use the expression 'low rates of pay' rather than refer to the 'the low paid' - the expression used in the former low-paid bargaining scheme, and also currently used in ss 134(1)(a) and s 284(1)(c). This indicates that some distinction in meaning is intended. 'Low paid' connotes the earnings of employees generally, but 'low rates of pay' has a more confined meaning that refers only to the amount an employee is paid for each defined period of working time (for example, an hour, day or week) or, in the case of pieceworkers, for each completed task or unit of work. The use of this different expression indicates that the approach adopted in the Practice Nurses decision and United Voice whereby 'low paid' was given the same meaning in s 243 as it had been in Annual Wage Review decisions made by reference to ss 134(1)(a) and 284(1)(c), with the benchmark being two-thirds of median adult ordinary-time earnings, should no longer be followed.
[32] We consider that, 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. 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 to 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 REM 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;... (underlining added)
[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."
[13] Applying the principles stated in UWU, AEU and IEU, low rates of pay prevail in an industry if employees are predominantly paid at or close to lowest rates which are legally available to be paid.
[14] The employees engaged by ISS and Menzies receive rates of pay by reference to the Cleaning Award classifications and rates, and an additional 5% top up directly funded by the Department of Education (Victoria). The average weekly hours worked for ISS employees is 20.6 and the median weekly income is $873.88. For Menzies employees, the average hours worked is 20 and the median weekly income is $773.56.
[15] It is the case that the employees who would be covered are essentially award reliant and low paid.
[16] The above conclusions weigh in favour of making the authorisation sought.
Whether the employers have clearly identifiable common interests: s 243(1)(b)(ii)
[17] In Application by UWU, AEU and IEU, the Full Bench stated:
"[34] Third, the expression 'common interests' used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application 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."
[18] In this case, there is material before the Commission about the circumstances of each of the employers and this demonstrates that there are clearly identified common interests.
[19] The employers operate in Victoria in Metropolitan Melbourne and perform work in State Government Schools.
Nature of the enterprises to which the agreement will relate
[20] The employers are both provide contract cleaning services for schools.
Terms and conditions of employment in the enterprises
[21] The terms and conditions of employment are similar but do vary; however, they are based upon the same modern award and are influenced to some degree by the same predecessor instrument.
[22] Both employers operate under the same service contracts held with the Department of Education of Victoria and are either entirely or substantially funded by the State Government of Victoria.
[23] Having regard to each of the above findings, the existence of the clearly identifiable common interests weighs in favour of making the authorisation sought.
Whether the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process: s 243(1)(b)(iii)
[24] The confirmed bargaining representatives' number three and is highly likely to lead to a manageable collective bargaining process.
[25] This consideration weighs in favour of granting the authorisation sought.
Any other matters the Commission considers appropriate: s 243(1)(b)(iv)
[26] I consider it appropriate to have regard to three additional matters. The first is that the affected employers support the application and wish to bargain together. None of the employees that would be affected has advised the Commission that they oppose the making of the authorisation sought.
[27] The UWU's uncontested evidence is that there is no history of bargaining in Victoria's public schools regarding the provision of contract cleaning services. There has long been a number of different contractors, and a workforce which is highly dispersed into a very large number of small teams working in separate schools, and which experiences a high degree of turnover. These issues feed into the ability of employees to exert bargaining power at an enterprise level. In the context of a highly feminized and low paid industry, this significantly weighs in favour of multi-enterprise bargaining being appropriate.
[28] I do not accept the UWU's submissions that employers in the contract cleaning sector suffer from the same disadvantage as an individual employee: in that, by themselves, they do not have the strength to influence the Victorian Government to change its funding position. The bargaining position of a business employing hundreds of employees quite likely with its own professional in-house staff is not analogous to an individual employee's bargaining position.
[29] On the basis of my consideration of the matters specified in s 243(1)(b) of the Act, I am also satisfied that it is appropriate for ISS, Menzies and the Employees that will be covered by the proposed multi-enterprise agreement to bargain together.
[30] None of the restrictions in s 243A on making supported bargaining authorisations applies here.
[31] Because the requirements in paragraphs (a), (b) and (c) of s 243(1) of the FW Act are each satisfied, and none of the restrictions in s 243A applies, I am required by s 243(1) to make the supported bargaining authorisation sought by the UWU. The authorisation is made by a separate order that is being published concurrently and, in accordance with s 243(4), will operate from the date of this decision.
[2] Witness Statement of Lyndall Ryan, para 11.
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