In a recent landmark decision, the Fair Work Commission (FWC) has granted the first contested supported bargaining authorisation in Victoria, under the Albanese Government’s Secure Jobs, Better Pay reforms. The order requires 10 Victorian disability support service providers to bargain collectively with their employees for a new enterprise agreement with support from the FWC.
The application for the order was brought by the Health Services Union and the Australian Education Union and, at the time of hearing, named 13 individual employers. The unions argued that the disability sector is marked by a combination of factors that weighed in favour of supported bargaining.
The FWC Full Bench agreed with much of the unions’ arguments, finding that:
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The employers which were to be covered by the supported bargaining order share clearly identifiable common interests;
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The operational differences cited by employers, such as variations in size, service type, and funding sources were not a barrier to bargaining collectively;
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The sector has had a relatively low uptake of single-enterprise bargaining, with many employees still covered by ‘zombie agreements’ which the FWC previously approved to be extended past the sunset date for all zombie agreements on 7 December 2023 (see our article here for more information);
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The workforce is female-dominated, and granting the authorisation would open opportunities to address gender-based undervaluation of their work; and
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Participation by the NDIS (as the primary funding body) would be more easily facilitated through supported bargaining, because the FWC can compel a person who is not an employer to participate in the bargaining process.
However, the Full Bench critically noted that these findings are likely to be the same for most, if not all, NDIS-funded services across Australia. Therefore, the Full Bench considered the selection of the employers in deciding whether it was appropriate to make the supported bargaining order.
Ultimately, the Full Bench determined that it was appropriate to grant the order in respect of only 10 of the 13 employers. This was predominantly based on the ‘common need’ amongst many of the employees covered by the application (compared to the need of employees in the disability sector generally) to retain the above-award conditions provided in extended zombie agreements, which continued to apply to 10 employers named in the application. For the employees of the 3 employers who were not covered by extended zombie agreements, it was not appropriate to include their employers in the supported bargaining order as they did not share this ‘common need’.
The key takeaways of this important decision are:
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When employers named in supported bargaining order applications share common interests with the broader industry, the FWC can investigate the selection of employers to determine the appropriateness of each employer’s inclusion in any eventual supported bargaining order.
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Achieving gender equity can be a consideration of the FWC in determining whether to grant a supported bargaining order.
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Operational differences between employers will not automatically prevent the FWC from finding supported bargaining to be appropriate.
If you have any questions about supported bargaining authorisations, please contact HR Legal for further information.
Case reference: Health Services Union & Australian Education Union [2025] FWCFB 131 (1 July 2025)
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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.
