This decision of the Fair Work Commission deals with an application for an intractable bargaining declaration (previously known as a “serious breach declaration) under sec 235 of the Fair Work Act..
“Introduction
[1]
In early 2025, the Australian Workers’ Union (AWU) commenced bargaining with Experience Co Limited for an agreement to be known as the Skydive Australia Enterprise Agreement 2026 (Proposed Agreement). The AWU contends that despite extensive efforts to reach agreement, bargaining has become intractable. Consequently, it has applied for an intractable bargaining declaration under section 234 of the Fair Work Act 2009.
[2]
Experience Co does not oppose the application.
[3]
For the reasons that follow, I have made an intractable bargaining declaration in relation to the Proposed Agreement which specifies a post-declaration negotiating period from 23 June 2026 to 23 July 2026.
Factual background
[4]
As the application is not opposed, it is convenient to adopt the summary of the relevant facts set out in the application:
“Initial Bargaining
1.
The AWU approached the Respondent to commence bargaining for an enterprise agreement to cover its skydiving operations staff on the 21st of May 2024. The Respondent did not agree to bargain.
2.
By way of application dated the 18th of July 2024, the AWU applied under section 236 of the Fair Work Act 2009 (Cth) (“Act”) for the Fair Work Commission (“Commission”) to make a majority support determination regarding certain employees of Experience Co Admin Pty Ltd and Experience Co Admin QLD Pty Ltd (together, the “employing entities”), who performed skydiving operations.
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DECISION
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3. Further to a decision issued by Deputy President Cross on the 20th of December 2024
([2024 FWC 3118]), the Commission made a determination on that date (operative
from that date), that a majority of employees employed by the employing entities,
being employees who will be covered by a proposed enterprise agreement, want to
bargain with the employing entities as the employers to be covered by the enterprise
agreement.
4. The Respondent issued the Notice of Employee Representational Rights on the 16th
of January 2025.
5. The first bargaining meeting was held on the 18th of February 2025. At this meeting,
the AWU asked the Respondent to provide a draft proposed agreement.
6. On the 18th of March 2025, the Respondent presented a draft agreement. The draft
agreement, however, provided only the minimum terms required for an agreement
to be approved by the Commission, and in particular, contained neither a wage offer
nor continuity of existing conditions.
7. The AWU presented its log of claims to the Respondent on the 23rd of March 2025.
Generally, the claims, sought improvements to wages and conditions including
increases to base rates of pay, clarification and reform of the credit and bonus
scheme, enhanced leave entitlements, improved allowances, overtime and penalty
rates, stronger protections for permanent employment, and the incorporation of
clearer health and safety, dispute resolution and union delegate provisions into the
proposed enterprise agreement.
8. Bargaining meetings subsequently occurred on the 24th of March 2025, the 14th of
April 2025, the 12th of May 2025, the 10th of June 2025, the 21st of July 2025 and
the 18th of August 2025.
Section 240 Application
9. On the 18th of August 2025, due to its concerns that no progress was being made
regarding key items of bargaining, the AWU, pursuant to section 240 of the Act,
filed an application for the Commission to deal with a bargaining dispute (which
became Commission matter number B2025/1311).
10. An additional bargaining meeting was held on the 29th of September 2025.
11. The application came before Commissioner Sloan, who conducted a conference of
the parties on the 2nd of September 2025 and the 23rd of October 2025.
12. … [A]t the conclusion of the conference on the 23rd of October, the Commissioner
expressed the view that he could not assist any further, acknowledging the
availability of protected industrial action to the AWU to further pursue its claims.
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13. Following the conferences, the Respondent tabled a new pay structure (piece rate
model) which the AWU agreed to in principle. However, subsequent to a vote on a
proposed enterprise agreement in March 2026…, the Respondent then abandoned
that pay structure.
Application for a Protected Action Ballot and Further Bargaining Meetings
14. On the 30th of October 2025, the AWU filed with the Commission an application for
a protected action ballot order.
15. By way of Decision ([2025] FWC 3320) and Order (PR793415) of Deputy President
Dean dated 4 November 2025, the protected action ballot was ordered to be held.
16. A conference pursuant to section 448A of the Act was held before Deputy President
Dean on the 13th of November 2025. The conference was very brief and the
consensus between Deputy President Dean and the parties was that no progress
could be made.
17. Bargaining meetings between the parties were held on the 11th of November 2025,
the 8th of December 2025 and the 12th of December 2025.
18. On the 15th of December 2025, an application was filed by the AWU to extend the
period in which industrial action is authorised by protected action ballot.
19. By way of Decision ([2025] FWC 3885) and Order (PR795203) of Deputy President
Hampton dated 18 December 2025 the 30 day period for the commencement of
protected industrial action was extended by a further 30 days.
Protected Industrial Action
20. Protected industrial action has been notified by the AWU on the 4th of December
2025, the 5th of December 2025, the 13th of February 2026, the 14th of February
2026, the 20th of February 2026, the 21st of February 2026, the 22nd of February
2026 and the 23rd of February 2026. Members of the AWU engaged in this protected
industrial action as notified.
Further Bargaining
21. Bargaining meetings between the parties then occurred on the 18th of December
2025, the 12th of January 2026, the 19th of January 2026, the 11th of February 2026,
the 17th of February 2026 and the 26th of February 2026.
…
‘No Further Utility in Bargaining’ & Draft Agreement Put Out To Vote
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24. On the 11th of March 2026, the AWU received an email from the Respondent’s Chief
Executive Officer, John O’Sullivan, outlining that he did not believe any further
progress could be made via bargaining, specifically the following:
“Given the extent of bargaining that has now taken place, and that the respective
positions of the parties are well understood, the Company considers there is no
further utility at this time in continuing bargaining.”
25. On the 13th of March 2026, the Respondent wrote to its employees to notify them of
its intention to put the draft enterprise agreement out to a vote to seek employee
approval.
26. The access period for the vote opened on the 14th of March 2026 and a ballot was
conducted between the 21st of March 2026 and 5.00pm AEST on the 23rd of March
2026.
27. On the 24th of March 2026, Experience Co advised that “The result was a decisive
No from the workforce”. The official declaration of the ballot showed that of 120
eligible voters, 100 ‘NO’ votes were cast, 2 ‘YES’ votes were cast, and 18
employees did not vote.
Additional Bargaining
28. Following the outcome of the vote above, bargaining meetings between the parties
have occurred on the 8th of April 2026 and the 23rd of April 2026. … No substantive
progress has since been made.
29. Beyond bargaining meetings, there have been numerous communications between
representatives of the parties concerning the issues in dispute.”
[5] The AWU filed its application on 21 May 2026.
[6] The application named Simon Ursin as an employee bargaining representative.
On 1 June 2026, the parties informed me that Mr Ursin was no longer employed by Experience
Co. On 11 June 2026, I arranged for an email to be sent to Mr Ursin asking him to inform the
Commission whether he wished to remain involved in the proceedings and, if so, in what
capacity. The email informed Mr Ursin that in the absence of a response, I would assume that
he did not wish to be heard on the application. We received no response.
Outstanding matters
[7] In its application, the AWU stated that the parties had been unable to reach agreement
on the following “key issues”:
“(a) Relationship with Other Instruments
(i) Incorporation of the Amusement, Events and Recreation Award 2020 and
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(ii) Incorporation of policies that impact employees and would therefore
need to go through the agreement’s consultation clause;
(b) Terms of the Agreement
(i) Start and end date of the agreement;
(c) Work Location and Duties
(i) The employer’s preparedness to update position descriptions concerning
these issues;
(ii) Consultation language regarding changes to duties and
(iii) Employer retaining final authority over Position Descriptions.
(d) Remuneration
(i) Timing/frequency of piece-rate and allowance payments;
(e) Remuneration Increases
(i) Timing/frequency of increases generally;
(f) Exception – Skydive Instructors working Employer Sponsored Temporary
Migration Arrangements
(i) Two-tier system for workers on a sponsored visa;
(g) Impacts to Operational Activity
(i) Employer discretion to require workers on site with no meaningful work;
(h) Future Training Work
(i) Employer determining future training rates/allowances if agreement
cannot be reached;
(i) Schedule A – Piece Rates/Allowances
Some piece-rate and allowance tables appear highlighted as unresolved,
including:
(i) tandem jump rates;
(ii) video/camera rates;
(iii) maintenance allowances and
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(iv) Drop Zone Safety Officer allowance provisions; and
(j) Schedule B – Position Description
(i) The contents of position descriptions, and the distinctions between
them.”
Statutory framework
[8] Section 235 of the Act is in these terms:
235 When the FWC may make an intractable bargaining declaration
Intractable bargaining declaration
(1) The FWC may make an intractable bargaining declaration in relation to a proposed
enterprise agreement if:
(a) an application for the declaration has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2); and
(c) it is after the end of the minimum bargaining period (see subsection (5)).
Matters of which the FWC must be satisfied before making an intractable bargaining
declaration
(2) The FWC must be satisfied that:
(a) the FWC has dealt with the dispute about the agreement under section 240
and the applicant participated in the FWC’s processes to deal with the
dispute; and
(b) there is no reasonable prospect of agreement being reached if the FWC does
not make the declaration; and
(c) it is reasonable in all the circumstances to make the declaration, taking into
account the views of all the bargaining representatives for the agreement.
What declaration must specify
(3) The declaration must specify:
(a) the date it is made; and
(b) the proposed enterprise agreement to which it relates; and
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(c) any other matter prescribed by the procedural rules.
Operation of declaration
(4) The declaration:
(a) comes into operation on the day it is made; and
(b) ceases to be in operation when each employer specified in the declaration is
covered by an enterprise agreement or a workplace determination.
End of the minimum bargaining period
(5) The end of the minimum bargaining period in relation to a proposed enterprise
agreement is:
(a) if one or more enterprise agreements (the existing agreements) apply to
any of the employees that will be covered by the proposed agreement—the later
of the following:
(i) the day that is 9 months after the nominal expiry date for that
existing agreement, or the latest nominal expiry date for those
existing agreements;
(ii) the day that is 9 months after the day bargaining starts, as worked
out under subsection (6); or
(c) the day that is 9 months after the day bargaining starts, as worked out under
subsection (6).
(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining
starts for a proposed agreement is:
(a) if a supported bargaining authorisation or single interest employer
authorisation is in operation in relation to the proposed agreement—the day
that the authorisation first comes into operation; or
(b) otherwise—the notification time for the proposed agreement
Why I have determined to make the declaration
[9] I will deal in turn with the requirements of section 235.
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An application has been made – section 235(1)(a)
[10] An “application for the declaration” for the purposes of section 235(1)(a) is a valid
application that meets the requirements of section 234.1 There is no dispute that the application
was validly made. The AWU is a bargaining representative for the Proposed Agreement.
The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement. I find
that a valid application has been made.
Satisfaction of matters set out in section 235(2) – section 235(1)(c)
[11] For the following reasons, I am satisfied of the matters set out in section 235(2).
The AWU participated in section 240 proceedings – section 235(2)(a)
[12] There was no controversy that the Commission has dealt with the dispute about the
Proposed Agreement under section 240 of the Act and that the AWU participated in the
Commission’s processes. I find accordingly.
There is no reasonable prospect of agreement being reached – section 235(2)(b)
[13] Section 235(2)(b) requires me 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. The Commission has observed that “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.2
[14] From my involvement in the proceedings brought by the AWU under section 240, and
having regard to the contents of the application and the fact that the application is not opposed,
I am satisfied that there is no reasonable prospect of agreement being reached if the Commission
does not make the declaration.
It is reasonable in all of the circumstances to make the declaration – section 235(2)(c)
[15] The AWU contends that it is reasonable in all of the circumstances for the Commission
to make the declaration having regard to the “key issues” on which the parties have been unable
to reach agreement, “[d]espite extensive bargaining, various applications to the Commission
and protected industrial action”. Again, Experience Co does not oppose the application.
[16] Bargaining between the parties commenced approximately 17 months ago. It has been
punctuated by proceedings in the Commission under sections 240 and 437, and by the
notification and taking of protected industrial action. Having regard to the views of the AWU
and Experience Co, I am satisfied that it is reasonable in the circumstances to make the
declaration.
The application was made after the end of the minimum bargaining period –
section 235(1)(c)
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[17] No enterprise agreement applies to any of the employees who will be covered by the
Proposed Agreement. No supported bargaining authorisation or single interest employer
authorisation is in operation in relation to the Proposed Agreement. It follows that, for the
purposes of section 235(1)(c), having regard to sections 235(5) and 235(6), the question is
whether the application was made more than 9 months after the day bargaining started, being
the notification time for the Proposed Agreement.
[18] Whether the minimum bargaining period has ended is essentially an issue of fact.3
The “notification time” for a proposed agreement is defined by section 173(2). That includes
when “the employer agrees to bargain, or initiates bargaining, for the agreement”.
The combined operation of section 173(1) and (3) is that the employer must issue a Notice of
Employee Representational Rights in respect of a single-enterprise agreement (other than a
greenfields agreement) not later than 14 days after the notification time for such an agreement.
So the fact that the NERR has been issued will usually be a reliable indicator that the notification
time has already occurred.4
[19] In this case, Experience Co issued the NERR on 16 January 2025. The notification time
was on or before that date. The AWU filed its application on 21 May 2026. I find that the
precondition in section 235(1)(c) is met.
No considerations weigh against exercise of discretion
[20] Even where the Commission is satisfied as to each of the matters in section 235(1)(a)-
(c), it retains a residual discretion as to whether to make an intractable bargaining declaration.
However, as the Commission has observed, it is difficult to identify what discretionary matters
might remain for consideration if the Commission has already satisfied itself as to the criteria
in section 235(2).5 But in any event, there is nothing in the present case which would weigh
against making an intractable bargaining declaration.
Post-declaration negotiating period
[21] Under section 235A, if the Commission makes a declaration and it considers it
appropriate to do so, it may specify in the declaration a “post-declaration negotiating period”.
In its application, the AWU proposed a 14 day period, “believing that it would provide an
opportunity for the differences between the parties to be narrowed for the purposes of the
Commission making a workplace determination”.
[22] Experience Co sought a post-declaration negotiating period of 30 days, on two bases.
First, it would “further facilitate negotiation of the issues in dispute between the parties”.
Second, it would “permit [the company] to finalise its updated position with respect to
remuneration following the finalisation of its parent company budget (due to be approved by
its board on 19 June 2026)”. The AWU consented (albeit reluctantly) to the longer period.
[23] I consider it appropriate to specify in the declaration a post-negotiation period of 30
days, for three reasons. First, there is some possibility that the making of a declaration, the
consequential removal of the ability to take protected industrial action6 and the prospect of an
intractable bargaining workplace determination may affect the approach taken by the parties to
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negotiations to date. Second, to the extent that Experience Co’s position on remuneration may
change depending on the finalisation of its parent company’s budget, “the specification of a
post-declaration negotiating period would be useful for the purpose of giving the parties an
opportunity to resolve, or at least narrow, their differences as to what matters will need to be
arbitrated”.7 Third, the parties consent to the specification of such a period.
Conclusion
[24] I make an intractable bargaining declaration in relation to the proposed Skydive
Australia Enterprise Agreement 2026. A 30-day post-declaration negotiating period will start
today, 23 June 2026, and end on 23 July 2026.
[25] The declaration is published by separate order in PR811275 which, in accordance with
section 235(4)(a), operates from the date of this decision.”
The Australian Workers’ Union (002N) v Experience Co Limited [2026] FWC 2311 delivered 23 June 2026 per Sloan C