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[2026] FWC 1159
General information, not legal advice.
Fair Work Commission
2026-04-08
Original judgment source is linked above.
s.229 - Application for a bargaining order
Application for a bargaining order - Not satisfied that good faith bargaining requirements not met - Order not granted - Application dismissed
[1] On 10 February 2026, the United Workers Union (UWU) applied for a bargaining order under s 229 of the Fair Work Act 2009 (Cth) in relation to bargaining with State Sports Centres Trust (SSCT) for a proposed enterprise agreement to replace the current State Sports Centres Trust Enterprise Agreement 2021.
[2] The SSCT is a body corporate established under the State Sports Centres Act 1994 (Vic). It operates various sports centres, including the Melbourne Sports and Aquatics Centre, the State Netball and Hockey Centre, the State Basketball Centre and Lakeside Stadium.
[3] UWU is a default bargaining representative for employees who would be covered by the proposed agreement. UWU and SSCT have been bargaining for a replacement agreement since October 2025. There is no dispute that the parties have been bargaining, and that they have yet to reach an agreement.
[4] Following an incident on 21 December 2025, SSCT suspended Mr Neil Hayes, Duty Manager and UWU delegate while it investigated allegations about his misconduct. Mr Hayes has been an employee of SSCT since November 2003 and a UWU delegate since 2021. Bargaining continued after Mr Hayes' suspension, but Mr Hayes has not attended any bargaining meetings since his suspension as he is excluded from attending SSCT sites. On 20 January 2026, SSCT invited Mr Hayes to show cause why they should not terminate his employment. Mr Hayes provided written responses on 27 January and 10 February 2026.
[5] On 6 February 2026, UWU wrote to SSCT to raise its concerns that by suspending Mr Hayes and proposing to terminate his employment, SSCT were in breach of the good faith bargaining requirements, namely s 228(1)(e) - to refrain from unfair and capricious conduct.
[7] Section 230(1) of the Act sets out that the Commission may make a bargaining order when an application is made, the requirements of section 230 are met, and it is reasonable in all the circumstances that an order is made. The conjunctive 'and' is used to connect the 3 elements, so all must be satisfied. The use of 'may' in the chapeau to s 230(1) means that the Commission retains the discretion not to make a bargaining order even if satisfied of all 3 elements.
[8] There is no dispute, and I am satisfied that an application under s 229 has been made, as required by s 230(1)(a). I am also satisfied that UWU is a bargaining representative in relation to the agreement as required by s 229(1), and the application was made within the timing requirements of s 229(3). The nominal expiry date of the current agreement is 1 October 2025; the application was not made more than 90 days before that date. The employer has not yet requested that employees approve a proposed agreement.
[9] There is no dispute, and I am satisfied that s 230(2) is met as the employer has agreed to bargain, and the parties have been bargaining since October 2025.
[10] Last, there is no dispute, and I am satisfied that UWU has complied with s 230(3)(b) by complying with the requirements of s 229(4), which requires that an applicant notify the relevant bargaining representatives of concerns. UWU wrote to SSCT on 6 February 2026, setting out its concerns that SSCT was not meeting the good faith bargaining requirements. UWU sought a response within 7 days of its letter, which I am satisfied is a reasonable time within which to respond to those concerns. SSCT responded on 9 February 2026. UWU then made this application on 10 February 2026, which I take to mean that UWU did not consider that SSCT responded appropriately to their concerns.
[12] UWU initially sought interim orders in similar terms to the final orders that it sought. At the case management conference in this matter, SSCT undertook not to take any further steps in relation to the show cause letter that it issued to Mr Hayes on 20 January 2026 until the final determination of this matter. It is therefore no longer necessary to consider the making of interim orders.
Have SSCT met the good faith bargaining requirements?
Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.
[14] UWU submit that SSCT has not met and is not meeting the good faith bargaining requirement in s 228(1)(e):
refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining.
[15] In Construction, Forestry and Maritime Employees Union v Oaky Creek Coal Pty Ltd [2017] FWC 5380 at [165], Deputy President Asbury (as she then was) summarised the principles with respect to whether bargaining representatives have met the good faith bargaining requirements in s 228(1)(e) of the Act. Those principles include:
(1) - that the bargaining representative has engaged in, or not refrained from, conduct that is capricious and unfair; and
(2) - that the conduct undermines freedom of association or collective bargaining, or both;
[16] The type of order sought by UWU is one of the orders the Commission can make under s 231(1)(c), but the Commission cannot make such an order unless positively satisfied that a bargaining representative is not meeting the requirement to not engage in or to refrain from capricious and unfair conduct that undermines freedom of association or collective bargaining: Construction, Forestry and Maritime Employees Union v Anglo Coal (Capcoal Management) Pty Ltd trading as Capcoal [2016] FWC 8847 at [124] (an appeal against the decision was dismissed in [2017] FWCFB 317).
What is the conduct that UWU says breaches s228(1)(e)?
[17] UWU says SSCT has engaged in, or not refrained from, capricious and unfair conduct by:
[18] The conduct relating to counselling and disciplinary processes and that forms the basis for SSCT's proposal to terminate Mr Hayes' employment include:
[19] On 20 November 2025, SSCT informally counselled Mr Hayes about an event in September 2025 in which there was negative feedback about the manner in which he had concluded the event and asked attendees to leave. The way in which UWU say this was in breach of s 228(1)(e) is that SSCT only decided to counsel Mr Hayes after bargaining had commenced, when the conduct occurred more than 9 weeks prior. SSCT met with Mr Hayes, accompanied by a support person from the Union, and issued him with a summary of the meeting in which it reminded him that his interactions were to remain respectful and professional, and that he was to follow correct procedures and processes to conclude events.
[20] On 5 December 2025, SSCT issued a letter of warning about an incident that occurred on 15 November 2025. That incident involved Mr Hayes raising the floor of a pool to remove a child from the pool. The child was known to Mr Hayes and SSCT, and was known to have challenging behaviours, including having guidelines and recommendations for how staff are to manage interactions with the child. The child's sister had sought assistance from a lifeguard and ultimately Mr Hayes as duty manager. SSCT substantiated its allegation against Mr Hayes of having breached its code of conduct, workplace behaviour policies, values and requirements of his Duty Manager position description. The warning said that additional disciplinary action, including termination of his employment, may result if there was any similar behaviour or failure to comply with SSCT's policies and procedures.
[21] On 21 December 2025, an incident occurred in which Mr Hayes grabbed the shirt of a child. The context of the incident was that the child was one of a group of children who were in an area of the aquatic centre where they were not authorised to be. Mr Hayes and another employee of SSCT approached the group who then ran away from them. Later, the same group were seen in the basketball area, which was restricted to paying customers. Mr Hayes and the other employee again approached the group of children, who ran around the court and into the score bench. The children jumped over the back of the score bench to get away from Mr Hayes, and he reached out to grab the shirt of one, who fell back into the bench but landed on his feet. Mr Hayes then spoke with the child whose shirt he had grabbed and the other remaining children and asked them to leave, which they did.
[22] Mr Hayes wrote an incident report on the same day and finished his shift. He then went on annual leave and returned to work on 29 December 2025, when he was informed that he was stood down with pay. Mr Hayes has not yet returned to work following his stand down on 29 December 2025.
[23] On 31 December 2025, SSCT wrote to Mr Hayes to inform him that they had engaged an external investigator to investigate allegations of inappropriate workplace conduct and breach of SSCT's obligations under the Child Wellbeing and Safety Act 2005 (Vic) and the Reportable Conduct Scheme. Mr Hayes participated in the investigation. The investigation concluded and Mr Hayes was informed of the outcome on 16 January 2026. On 20 January 2026, Mr Hayes attended a meeting and was provided with a letter. The letter informed him that the allegations against him were substantiated and that SSCT proposed to terminate his employment. Mr Hayes was asked to show cause as to why he should not be terminated and was provided with a deadline for the response. Mr Hayes provided a written response on 27 January 2026. SSCT sent Mr Hayes a further letter on 29 January 2026, which referred to the informal counselling in November 2025 and the warning dated 5 December 2025. Mr Hayes was provided with further time to provide a response and did so on 10 February 2026.
[24] UWU submit that the employer does not have a proper, defensible or well-founded reason to terminate Mr Hayes' employment, and that the external investigator's findings about Mr Hayes' conduct was affected by error and not grounded in evidence capable of satisfying the balance of probabilities, particularly having regard to what is alleged and the relevance of the Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 standard.
[25] UWU further submit that the outcome of terminating Mr Haye's employment would not be fair, equitable or just. In particular, that termination would be a disproportionate response, having regard to Mr Hayes' 23 years of service, that he self-reported the incident and that it is the first allegation of that kind against him.
[26] The basis upon which UWU say that suspending and proposing to terminate Mr Hayes' employment is capricious or unfair conduct that undermines freedom of association and collective bargaining is that he is a key bargaining delegate. He is key to UWU's bargaining unit at SSCT because of his long service and relationships across the multiple sites that would be covered by the proposed agreement. In addition, a point of contention in the bargaining is whether the proposed agreement is to cover duty managers, and Mr Hayes is the only duty manager in UWU's bargaining unit.
[27] SSCT says that its conduct is not capricious or unfair because it is subject to child safety standards and reporting obligations under the Child Wellbeing and Safety Act 2005 (Vic). SSCT has workplace policies that all employees, including Mr Hayes as duty manager, are required to comply with. An incident occurred that Mr Hayes was required to report, and he did report. Because of that report, SSCT had to investigate, and it did so by appointing an external investigator. SSCT say that the investigation was conducted in accordance with good practice; the investigator collected evidence including CCTV footage, interviewed relevant people including Mr Hayes and made findings and recommendations in a report provided to SSCT.
[28] The entirety of the external investigator's report has not been provided to Mr Hayes, the Union nor to me in this matter. However, SSCT did include the Summary of Key Findings from the report in Mr Mather's evidence. The investigation substantiated that Mr Hayes had engaged in a reportable conduct allegation of physical violence committed against a child, which was also a breach of the SSCT's Code of Conduct relating to Child Safety and Wellbeing and policies relating to Workplace Behaviour and Child Safety and Wellbeing.
[29] The Summary of Key Findings further acknowledged:
[30] SSCT say that it has not undermined collective bargaining. It says that meetings have continued, that most claims have substantially progressed but that 3 areas have not yet been discussed. SSCT say that significant progress has been made towards agreement. SSCT further say that the bargaining committee included 8 UWU delegates of which 3 (including Mr Hayes) are duty managers.
[31] I am not satisfied that SSCT's conduct is capricious, because there is a rational basis for it. An employer is entitled to take action to protect its legitimate business interests, including when it is protected industrial action that is causing damage to those interests (see Capcoal at [110]) or against misconduct when bargaining is occurring, including when the misconduct occurs during protected industrial action (see Oaky Creek Coal at [173], [178]). The high point for UWU's case in this matter is that, until bargaining commenced where Mr Hayes was a delegate and a member of UWU's bargaining unit, he had never experienced any form of disciplinary action in the 19 years of his employment with SSCT. UWU also point to the rapid succession of the disciplinary actions as indicative of capriciousness.
[32] But there is no dispute in this matter that the 3 incidents, which were (1) the subject of informal counselling on 20 November 2025, (2) the warning letter dated 5 December 2025 and (3) the incident on 21 December 2025 that led to the show cause notice, occurred. The incidents occurred during Mr Hayes' performance of work, and were not actions taken during the course of bargaining or otherwise related to bargaining (such as having discussions with fellow employees). I do not consider that such a link is necessary in order for the limbs of s 228(1)(e) to be satisfied. Something more must be demonstrated where alleged capricious or unfair conduct relates to actions that are less directly connected to bargaining. For example, in Oaky Creek Coal at [217], there was evidence that the employer's actions of hiring security to film and photograph employees taking industrial action were for the purpose of gathering evidence for the purposes of taking action against the union.
[33] I accept that the timing of the informal counselling in November 2025 and the lapse of time since the incident itself in September 2025 does give rise to a suspicion of capriciousness. In an email inviting Mr Hayes to an informal meeting, Mr Matt Baragwanath, Operations Manager and Mr Hayes' direct supervisor, informed Mr Hayes that SSCT had "received some further feedback from the client" relating to the event in September 2025. It is possible, but I do not have sufficient evidence to conclude, that the timing arose due to the receipt of this 'further feedback'. Neither of SSCT's witnesses were directly involved in the disciplinary processes relating to the incidents that predated the 21 December 2025 incident.
[34] Further, the relevance of the informal counselling is minimal; it forms one part of why SSCT issued the show cause notice but the greater part, as demonstrated by what both parties focussed upon in their evidence, was the incident of 21 December 2025. This is distinguishable from the facts in Oaky Creek Coal ([210-211]) where the conduct that formed the basis for warning letters occurred a month prior to the employer taking action in circumstances which belied the employer's evidence that it took such conduct seriously and there was urgency.
[35] I am also not satisfied that SSCT's conduct was unfair. SSCT engaged in a process; it did not act abruptly or without warning or contrary to its own policies. It notified Mr Hayes of the allegations against him and provided him with an opportunity to respond and have a support person present at any meetings, including the informal meeting of 20 November 2025. It also provided Mr Hayes further time to respond when it decided it would consider the 21 December incident in the context of the 2 prior incidents and related disciplinary actions. Again, this can be distinguished from the facts in Oaky Creek Coal (at [216]), when the employer proceeded to issue allegation letters in the absence of complaints but for conduct where it usually required formal complaints to be made.
[36] In relation to SSCT suspending Mr Hayes and excluding him from the workplace, I accept that this is the usual course when SSCT investigates alleged reportable conduct of physical violence against a child. In those circumstances it is neither capricious nor unfair.
[37] I do not agree with UWU that SSCT's reliance on "historical counselling and disciplinary matters," is a failure by SSCT to not engage in, or refrain from, capricious and unfair conduct. First, the matters are not historical; they relate to incidents within 3 months of the final incident that is the subject of the show cause notice. Second, they relate to incidents that did occur. Last, the weight to be given to the incidents or exculpatory factors is a matter relevant to whether a dismissal is unfair, but it is not capricious or unfair for SSCT to take those matters into account in its decision-making process.
Conduct does not undermine freedom of association or collective bargaining
[38] I am not satisfied that SSCT's conduct undermined freedom of association or collective bargaining. I accept that Mr Hayes was an integral and key member of UWU's bargaining team because of his long period of employment, relationships across the sites that the agreement was proposed to cover, and because whether the agreement would cover duty managers (his role) was in issue in the bargaining. I accept that the removal of a key bargaining representative could undermine freedom of association or stymie collective bargaining.
[39] However, Mr Hayes is one of 8 or 9 UWU delegates who are on the bargaining committee. There is no evidence that the employer has taken disciplinary action against any other UWU delegate on the bargaining committee. Again, the facts in this matter can be distinguished from Oaky Creek Coal (at [221]) where allegations and warning letters were issued against all (except one) bargaining representative and every member of the executive of Oaky North Lodge (the CFMEU's organisational unit at the particular workplace).
[40] There is a minor discrepancy in the evidence about the number of bargaining meetings that have occurred to the date of the hearing. Mx Mulvaney for the UWU gave evidence that there has been a total of 13 bargaining meetings from October 2025 until the date of the hearing. Ms Ralston for SSCT gave evidence of the same number of bargaining meetings, but she counted 2 occurring on 2 and 3 December 2025 as one meeting. Mr Hayes attended all meetings until his suspension. There have been 4 bargaining meetings following Mr Hayes' suspension and a further meeting planned for 24 February 2026. So, bargaining has continued despite Mr Hayes' absence. I do not have evidence of SSCT refusing to allow Mr Hayes to attend the bargaining meetings other than evidence that he is suspended from the workplace. Nor do I have evidence of whether he or UWU on his behalf have asked if he can attend workplace for the purposes of attending bargaining meetings or to consult with employees and members while on suspension.
[41] I accept UWU's submission that bargaining is more than the mechanical process of meeting. It includes representation, reporting to, and consulting with, union members and employees who are not present at bargaining meetings, about proposals that the employer has made or that the employee group may wish to put forward. I accept that the removal of a person whom the union and employees consider key to bargaining could undermine bargaining and could have a chilling effect on freedom of association. I also accept the Union's evidence that bargaining has been affected by Mr Hayes' absence.
[42] The UWU has not demonstrated that there was intent to undermine bargaining and freedom of association, but intent is not necessary or determinative: see Oaky Creek Coal at [165].
[43] I do not have evidence before me that satisfies me that bargaining has been undermined or if there has been an effect on freedom of association in this matter. Rather, I have the opposite. Mx Mulvaney gave evidence that bargaining has been productive, for the most part. Ms Ralston gave evidence, including minutes of bargaining meetings, where claims have been discussed. There were 4 further bargaining meetings planned after the hearing and Ms Ralston says that she anticipates being able to provide the bargaining committee with a draft agreement in April.
Is it reasonable in all the circumstances to make the order?
[44] As I am not satisfied that SSCT has breached the good faith bargaining requirement in s 228(1)(e), I cannot make an order under s 230. For completeness, I address the parties' submissions about whether it is reasonable in all the circumstances to make the order.
[45] SSCT did not press a concern raised shortly before the hearing that the Commission may not have the power to make an order that would infringe SSCT's right, as a state government instrumentality, to determine the number and identity of persons whom it wishes to employ and the terms of any such appointment: see re Australian Education Union & Australian Nursing Federation; ex parte Victoria (1995) 184 CLR 188 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 232. SSCT said that this was because SSCT was a body corporate with perpetual succession and the ability to sue or be sued; the parties are bargaining; the orders sought by UWU are of a kind specified in s 231(2)(c) of the Act; and s 4(1)(a) of the Fair Work (Commonwealth Powers) Act 2009 (Vic) referred the making of laws with respect to bargaining. It is not necessary for me to reach any conclusions about this issue.
[46] Section 230 is clear that there remains a residual discretion about whether to make a bargaining order even if satisfied of the broad evaluative decision about whether it is reasonable to make such an order. I am of the view that, had I been satisfied that there was a breach of the good faith bargaining requirement in s 228(1)(e), that it would have been reasonable in all the circumstances to make the bargaining orders sought. This is not a matter similar to the facts in Transport Workers Union v Hunter Operations Pty Ltd [2014] FWC 7469 where there was no utility to make the order because no Notice of Employee Representational Rights had been issued and any agreement that was made following bargaining could not have been approved by the Commission: at [65]-[66]. This is a matter where the order sought would remedy the impugned conduct.
[47] SSCT point to its child safety and reportable conduct obligations as a ground for why it would not be reasonable to make the orders sought. I disagree; the obligations do not require the dismissal of an employee. They require reporting, investigation and appropriate action taken to ensure the welfare of children. Given the circumstances of this matter, being Mr Hayes' admissions about the conduct but also his explanations and long history of exemplary employment, it does not strike me that dismissing Mr Hayes is the only way SSCT can ensure child safety in similar circumstances in future. Further training, a consideration as to what other tools can be employed to remove children from areas where they should not be, as well as having a different mix of available staff may all be relevant considerations.
[48] I am not satisfied that SSCT has not met or is not meeting the good faith bargaining requirements, and so I dismiss the application.
[49] I observe that this is not an application for an unfair dismissal remedy. Mr Hayes has not yet been dismissed. In those matters, the Commission must be satisfied that conduct forms a valid reason for dismissal, and relevant mitigating factors may be taken into account. In addition, the proportionality of a decision to terminate employment in the context of lengthy service, and the harshness of termination in the context of the individual are all relevant factors. They are not the considerations for a decision about whether to make a bargaining order, in which the Commission must be positively satisfied that the employer has engaged in, or not refrained from, capricious and unfair conduct that undermines freedom of association and collective bargaining.
[50] I order that the United Workers' Union application in Fair Work Commission matter B2026/85 for a good faith bargaining order under s 229 of the Fair Work Act 2009 (Cth) made on 10 February 2026 be dismissed.
Mr A Galbraith, of Counsel, instructed by Maddocks Lawyers, with permission, on behalf of the Respondent.
Printed by authority of the Commonwealth Government Printer
United Workers' Union
State Sports Centres Trust [2026] FWC 1159
(1938) 60 CLR 336
(1995) 184 CLR 188