1 Fair Work Act 2009 s.242 - Application for the FWC's approval of a supported bargaining authorisation Health Services Union & Australian Education Union (B2023/1235) DEPUTY PRESIDENT WRIGHT COMMISSIONER YILMAZ COMMISSIONER ALLISON SYDNEY, 1 JULY 2025 Application for a supported bargaining authorisation - Disability services [1] This is an application for a supported bargaining authorisation made by the Australian Education Union (AEU) and the Health Services Union (Branch No. 2 Victoria trading as the Health and Community Services Union (HACSU) (together the Applicants) pursuant to s.242(1) of the Fair Work Act 2009 (Cth) (the FW Act). [2] The authorisation is sought in respect of bargaining for a proposed multi-enterprise agreement (the Proposed Agreement) covering each of the following 14 employers (the Respondents) and their employees who perform disability work in Victoria (not including employees of the employers whose employment is covered by the Supported Employment Services Award 2020): a. Amicus Community Services Ltd (Amicus) b. ASTERIA Services Inc (ASTERIA) c. Aurora Support Services Inc (Aurora) d. Community Accessability Inc (Community Accessability) e. Dame Pattie Menzies Centre Inc, trading as Menzies Support Services (Menzies) f. Distinctive Options and Noweyung Ltd g. George Gray Centre Inc (George Gray) h. Life Skills Victoria Inc (Life Skills) i. Mambourin Enterprises Ltd (Mambourin) j. McCallum Disability Services Inc (McCallum) k. Milparinka Adult Training Unit Inc trading as Milparinka Disability Services (Milparinka) l. Mirridong Services Inc (Mirridong) m. Windarring Limited (Windarring) [3] Each of the Respondents opposes the making of the authorisation. [2025] FWCFB 131 DECISION [2025] FWCFB 131 2 [4] The Respondents are national system employers for the purposes of the FW Act who are engaged in the disability sector in Victoria. [5] Each of the Respondents employ one or more employees who perform work within the coverage of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) and who are members of and are represented by the AEU or HACSU. [6] For the reasons set out below, we have decided to grant the application in respect of some, but not all of the Respondents, and make the authorisation. The hearing [7] The matter was initially listed for directions on 22 November 2023. The Applicants requested an extended timetable for the filing of material which was accommodated by the Commission. The Applicants filed their material on 2 February 2024, and the Respondents filed their material on 15 March 2024. The Applicants filed material in reply on 2 April 2024, and the matter was listed for further directions on 4 April 2024. [8] Because this is the first contested application for a supported bargaining authorisation, we invited the Australian Government, peak employer organisations and the Australian Council of Trade Unions (ACTU) to make submissions in the matter. The Australian Industry Group (Ai Group) and the ACTU accepted this invitation and were granted leave to make written and oral submissions in the proceedings. National Disability Services (NDS), a national peak body for disability service organisations, also filed written submissions in the proceedings. [9] The application initially sought to cover 19 employers. On 23 February 2024, the Applicants sought leave to amend the application to remove five of the Respondents. The application to amend was not opposed by any of the Respondents. On 12 March 2024, the application to amend was granted by Deputy President Wright. [10] At the directions hearing on 4 April 2024, the Applicants requested that the matter be listed for a half day conference in Melbourne to work through some of the issues that had been raised by the Respondents with the view to avoiding a lengthy hearing and the associated cost and resources. A number of the Respondents consented to participating in a conference while others were opposed on the grounds that they did not believe that the issues between the parties were likely to be resolved, based on the material filed. [11] Given the divergence of views in relation to the proposed conference and the hearing, directions were made requiring the parties to have direct discussions with the view to identifying agreed facts and potentially reducing the number of witnesses required for cross examination and other matters. The Applicants were required to report back by email the outcome of those discussions in May 2024 and the matter was listed for conference in Melbourne before Deputy President Wright on 24 June 2024. Following the conference, the parties requested an opportunity to file further evidence in relation to the ‘common interest’ criteria and that the matter be listed for hearing in November 2024. [2025] FWCFB 131 3 [12] The Respondents filed supplementary written submissions in relation to the application of section 243(1)(b)(ii) of the FW Act on 30 August 2024 and the Applicants filed their responses on 4 October 2024. [13] The matter was listed for hearing on 11 and 12 November 2024. We granted the parties permission to be legally represented at the hearing pursuant to s.596 of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently, having regard to the complexity of the matter. [14] The following witnesses gave evidence on behalf of the Applicants: 1. Ms Elaine Gillespie, Vice President (TAFE and Adult Provision Sector) of the AEU, Victorian Branch 2. Mr Justin Mullaly, Branch Deputy President of the AEU Victorian Branch 3. Ms Angela Carter, Disability Policy Officer, HACSU [15] The following witnesses gave evidence on behalf of the Respondents. 1. Ms Katrina Ray, Head of People and Culture, Amicus Community Services Ltd 2. Ms Annie Constable, Chief Executive Officer, ASTERIA Services Inc 3. Ms Jacinta Taylor, Executive Director, Aurora Support Services 4. Mr Rick Lawford, Chief Executive Officer, Community Accessability Inc 5. Ms Sara Murray, Acting CEO/Operations Manager, Dame Pattie Menzies Centre Inc, trading as Menzies Support Services 6. Mr Ernie Metcalf, Chief Executive Officer, Distinctive Options, and Acting Chief Executive Officer, Noweyung Ltd 7. Mr Peter Green, Chief Executive Officer, George Grey Centre 8. Ms Carole Broxham, Chief Executive Officer, Life Skills Victoria 9. Ms Danielle-Carey Munro, Chief Executive Officer, Mambourin Enterprises Limited 10. Ms Lauren Baker, Executive Manager People and Culture. McCallum Disability Services Incorporated. 11. Ms Doreen Milne, Chief Executive Officer, Mirridong Services Inc 12. Mr Simon Hill, Chief Operating Officer, Windarring Limited [16] The evidence of all witnesses was admitted without objection. Only Ms Gillespie and Ms Carter were required for cross-examination at the hearing. Background to the Application [17] Ms Gillespie provided evidence on behalf of the AEU. Under the Rules of the AEU, Ms Gillespie has responsibility for the AEU disability sector in Victoria including collective bargaining, advocating for members’ professional interests and for research and campaigning.1 [18] Ms Gillespie explained that most of the AEU’s disability sector members are employed as ‘Instructors’ in ‘Day Services’ and that this work has been regulated under federal industrial laws since 1993. Before this, industrial conditions were set by determinations or awards made pursuant to the Victorian industrial relations system laws.2 [2025] FWCFB 131 4 [19] Ms Gillespie gave evidence that person-centred planning for individual needs and support is a key feature of the work of Instructors. This involves planning programs of instruction in accordance with the interests and capabilities of persons living with disability. Instructors liaise with carers and parents; maintain records; plan programs; and monitor and assess progress. Instructors are also employed to provide services called ‘Community Access’. Instructors who provide community access services conduct programs for adult persons living with disability to develop their skills, educate them and enrich their experiences. Such programs include a wide range of living skills (food preparation, purchasing, banking, and independent travelling), pre-employment training and general interest topics. The programs aim to integrate persons living with disability into the community to the greatest extent possible. Programs may be conducted at a centre or in the wider community (that is, in outreach programs). 3 [20] In 1993, the Australian Industrial Relations Commission (AIRC) made the Disability Services Award (Victoria) 1993, which was reviewed and amended by the AIRC in 1999 and became the Disability Services Award (Victoria) 1999 (Pre-modern Award). The Pre-modern Award covered, and applied to, Instructors.4 The conditions of employment of Community Access Employees and Day Services Employees have also been governed by agreements certified, or approved by, the AIRC and successor bodies.5 [21] In 1999, the AEU and a large number of employers operating day services entered into a certified agreement known as the Disability Services Victoria (Part 1) Enterprise Agreement, 1999 (MECA).6 In the 2000s, and prior to the commencement of the FW Act, a number of employers covered by the MECA entered into separate certified agreements and collective agreements, which covered and applied to Instructors. These included certified agreements and collective agreements entered into by some of the Respondents (now known as ‘zombie agreements’).7 Some of these agreements cover residential services that employ disability sector workers who are within the coverage of HACSU. Ms Carter explained that HACSU’s members work in disability services across Victoria in both residential, in-home support, community participation and day services settings.8 [22] With effect from 1 January 2010, Fair Work Australia (FWA) made the SCHADS Award, which is a modern award that succeeded the Pre-modern Award. The SCHADS Award has been varied over the years and covers disability sector workers, including Community Access Employees and Day Services Employees.9 [23] On 22 June 2012, FWA made the Social, Community and Disability Services Industry Equal Remuneration Order 2012 (ERO) under Part 2–7 of the FW Act. The ERO applies to employees classified under Schedule B of the SCHADS Award referred to as ‘social and community services employees’, which includes Community Access Employees and Day Services Employees.10 [24] The ERO sets the wage rates of disability support workers. The wage increases were funded by the Commonwealth under, and in accordance with, the Social and Community Services Pay Equity Special Account Act 2012 (Cth). The AEU considered that the terms and conditions set under the Workplace Relations Act 1996 (Cth) were better than the SCHADS Award and, given the financial constraints of employers in the disability sector, did not consider [2025] FWCFB 131 5 that there were prospects of obtaining better terms and conditions of employment for its members in the disability sector.11 [25] Ms Carter explained that in Victoria, disability providers previously received ‘block funding’ from the Victorian Government to deliver disability services that gave disability services discretion as to how they allocated those funds. The introduction of the NDIS changed the delivery of funding to service providers from block funding to individualised funding. Under the NDIS, funding is provided to a person with a disability on an itemised basis similar to Australia’s Medicare system.12 [26] The National Disability Insurance Scheme Disability Support Worker Cost Model (NDIS DSW Cost Model) caps the cost of disability support workers to the SCHADS Award minimum pay rates and does not fund all conditions under the SCHADS Award.13 [27] Ms Carter said that the NDIS DSW Cost Model has greatly impacted bargaining in the disability sector to the extent that bargaining has almost completely shut down in the sector. During bargaining discussions, employers are reporting to HACSU that they cannot pay disability support workers more than the ERO minimum rates of pay because they are only funded for what NDIS pay, and this is aligned to the ERO.14 [28] Ms Carter explained that in about 2017, the AEU and HACSU were approached by Jobs Australia, an employer organisation with members who provided disability services in Victoria. Jobs Australia reported that their members were operating on zombie agreements that contained above award terms and conditions that these employers were struggling to afford as a result of the NDIS DSW Cost Model. These discussions resulted in the parties commencing a bargaining process with the assistance of the Commission through what was then called the New Approaches Program (now called the Collaborative Approaches Program).15 [29] In 2019, the Commission approved the Victorian Disability Services (NGO) Agreement 2019 (2019 VDSEA) which was succeeded by the Victorian Disability Services (NGO) Agreement 2023 (2023 VDSEA).16 [30] A number of key entitlements that were preserved under the terms of the 2019 VDSEA included: a. Six weeks’ annual leave for currently employed staff (Clause 27.2); b. 15 days’ personal leave for all staff (Clause 28.2 and 28.3); c. Parental leave for currently employed staff (Clause 34.3); and d. The wages rates were set in accordance with the ERO and existing agreement classification structures (Clause 16 and Schedule C.3).17 [31] The terms of the 2019 VDSEA were essentially rolled-over into the 2023 VDSEA, with around 12 low-cost or no-cost items agreed to. Ms Gillespie said that the work that is covered by the 2023 VDSEA is broadly the same, if not identical to, the work that would be performed by employees of the Respondents under the Proposed Agreement.18 [32] Ms Gillespie said that the parties to the 2019 VDSEA and the 2023 VDSEA, which included the AEU and HACSU, availed themselves of the auspices of the Commission’s ‘New [2025] FWCFB 131 6 Approaches’ program. Bargaining has been facilitated by Mr Julius Roe, a former member of the Commission. A fundamental interest that has been recognised by the parties is the vital importance of securing funding for the work of the VDSEA Employers. This interest is acknowledged in clause 3.1(g) of the 2023 VDSEA, which provides that: The parties are committed to the Bargaining Charter which was developed in the lead up to this Agreement and is contained at Schedule H of this Agreement. The parties will jointly and separately pursue funding and regulatory changes necessary to support the principles as set out in the Bargaining Charter.19 [33] The Bargaining Charter provides as follows: Principle 1: Commitment to Choice and Control • We believe people living with a disability have the choice and control to make their own decisions about the supports they receive. • We believe that it is vital that those who provide support are registered providers and skilled workers in order to ensure high quality outcomes for people living with a disability. Principle 2: Commitment to Multi-Employer Bargaining We agree that a Multi-Employer Agreement enables us to effectively collaborate to ensure that the following objectives of quality disability support services are promoted: o quality care o responsiveness to client needs o best practice working conditions o job security, and o a well-trained professional workforce. Principle 3: Protection of Over-Award Entitlements • The current MEA contains better terms and conditions for workers than the SCHADS Award. • We will seek to continue to include over-Award entitlements as we recognise this is important for the retention of the workforce who deliver quality care. Principle 4: Maximise Secure Work and Operational Flexibility • We will achieve this by enhancing the consistency, quality and flexibility of service delivery to clients. • We support the recruitment and retention of a committed and professional workforce. • We will include appropriate clauses regulating working hours and conditions to support these principles. • We are committed to facilitating opportunities for, and the attractiveness of, longer term roles with adequate hours with a single employer, thereby reducing the need for workers to work for numerous employers, as sole traders, or seek work in other sectors and maximising the continuity of supports for participants. Principle 5: Disability Workforce Attraction and Retention [2025] FWCFB 131 7 • Improved wages are required to better recognise professional disability work to ensure high quality support and we are seeking appropriate funding to support this. • We are committed to enhancing the professional status of disability support workers and the disability sector, including through registration with the Victorian Disability Workers Commission (VDWC) and access to adequate training. • We are committed to improving attraction and retention of disability support workers in order to provide high quality best practice supports. Principle 6: Best Practice OHS Standards • We are committed to best practice occupational health and safety standards, including: o reducing the risks of occupational violence and o reducing the risks of stress related illness. Principle 7: Consultation and Collaboration • We are committed to facilitating ongoing consultation and collaboration between employers, unions and the workforce. Principle 8: Funding Support • We will seek to involve Government and the NDIA to achieve a funding and regulatory environment to meet and promote these agreed Principles. • We support workers being paid, and employers being appropriately funded, for all work including planning, professional development and training, administration time, leadership and quality assurance. • We support an equal focus on funding for individualised and shared arrangements to provide quality and responsive services. • The full achievement of our objectives will require a cooperate effort and appropriate funding support to create a more supportive funding and regulatory environment.20 [34] The nominal expiry date of the 2023 VDSEA was 30 June 2024. The AEU and HACSU intend to bargain with the employers covered by the 2023 VDSEA in accordance with the principles set out in the Bargaining Charter. They will be assisted by Mr Roe.21 [35] In addition to the 2023 VDSEA, the AEU has negotiated a small number of single- enterprise agreements for Instructors employed by Victorian employers. The rates of pay in these enterprise agreements are set in accordance with, or marginally above, the SCHADS Award.22 [36] Ms Carter explained that the 2023 VDSEA dealt with some of the complex above Award zombie agreement entitlements through the grandfathering of those provisions for certain workers which has enabled the employers who are parties to the VDSEA to continue running viable disability services businesses.23 [37] Ms Carter explained that throughout the course of bargaining for the VDSEA from 2017 to the present, there has been three major bargaining representatives with some additional bargaining representatives. However, the majority of employers have been represented by one major bargaining representative with an ‘employer bargaining committee’ who also attends bargaining. Ms Carter said that the bargaining process has been manageable and has worked [2025] FWCFB 131 8 well. The parties have developed a good working relationship and continue to work together in an effort to develop solutions to the issues presented by the NDIS DSW Cost Model.24 [38] Ms Carter explained that in July and August 2023, HACSU wrote to the majority of the Respondents as most of them were covered by zombie agreements that would expire on 6 December 2023 unless an application was made to extend those agreements. According to Ms Carter, the zombie agreements contain terms and conditions which are more favourable than the SCHADS Award including 21 days personal leave, six weeks annual leave, shift penalty provisions that apply on weekends, first aid allowance and make up pay. Ms Carter said that HACSU wrote to the Respondents to ascertain whether they were willing to bargain and whether they were interested in making a joint supported bargaining application to deal with the issues presented by the NDIS DSW Cost Model which does not fund above Award conditions.25 [39] Ms Carter said that the Respondents either did not respond, advised that they were not interested in bargaining or did not provide a firm commitment to explore bargaining further.26 Statutory framework [40] The object of the FW Act as set out in s.3 is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by a number of measures including at ss.3(a) and (f): (a) providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and … (f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action [41] Section 3(a) was amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) to insert the words ‘promote job security and gender equality’. [42] The FW Act provides for the making, and approval by the Commission, of enterprise agreements in Part 2-4. Section 171 sets out the objects of the Part as follows: 171 Objects of this Part The objects of this Part are: (a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and (b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through: (i) making bargaining orders; and [2025] FWCFB 131 9 (ii) dealing with disputes where the bargaining representatives request assistance; and (iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay. [43] The SJBP Act amended the FW Act to make provision for bargaining representatives, including employee organisations, to make an application for a supported bargaining authorisation in relation to a proposed multi-enterprise agreement. This was to replace the previous ‘low paid bargaining stream.’ [44] These amendments were first considered by the Full Bench in Application by UWU, AEU and IEU.27 In that case, the Full Bench observed that the low-paid bargaining scheme essentially failed to achieve its legislative purpose, which included to assist and encourage low paid employees and their employers, who have not historically had the benefits of collective bargaining, to make an enterprise agreement that meets their needs. Only five applications for low-paid authorisations were made in the almost 14 years that the scheme was in place, only one of these was successful (the Aged Care decision) and the successful application did not lead to the making of a multi enterprise agreement.28 [45] The effect of a supported bargaining authorisation as described in the ‘guide’ to Part 2- 4 in s.169 is that: … specified employers are subject to certain rules that would not otherwise apply (for example, bargaining orders that would not usually be available for multi-enterprise agreements will be available). It also permits the FWC to assist the bargaining representatives for such agreements. [46] The relevant legislative provisions in relation to supported bargaining authorisations are found in ss.241-243A of the FW Act. [47] Section 241 sets out the objects of Division 9 of the FW Act as follows: 241 Objects of this Division The objects of this Division are: (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. [48] Section 242 sets out who may apply for a supported bargaining authorisation and what the application must specify. It provides: 242 Supported bargaining authorisations (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; [2025] FWCFB 131 10 (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)). (2) The application must specify: (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. [49] Section 243 sets out the circumstances in which the Commission is required to make a supported bargaining authorisation, provides what the authorisation must specify and states when the authorisation come into operation. It provides: 243 When the FWC must make a supported bargaining authorisation Supported bargaining authorisation—main case (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). Common interests (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: [2025] FWCFB 131 11 (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. What authorisation must specify etc. (3) The authorisation must specify: (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. Operation of authorisation (4) The authorisation comes into operation on the day on which it is made. [50] Section 243A sets out the restrictions on making supported bargaining authorisations as follows: 243A Restrictions on making supported bargaining authorisations Relationship between this section and section 243 (1A) Section 243 has effect subject to this section. Employees covered by single-enterprise agreement that has not passed nominal expiry date (1) The FWC must not make a supported bargaining authorisation specifying an employee who is covered by a single-enterprise agreement that has not passed its nominal expiry date. (2) A supported bargaining authorisation has no effect to the extent that it specifies an employee who is covered by a single-enterprise agreement that has not passed its nominal expiry date. (3) However, subsections (1) and (2) do not apply if the FWC is satisfied that the employer’s main intention in making the agreement with the employees covered by it was to avoid being specified in a supported bargaining authorisation. General building and construction work (4) The FWC must not make a supported bargaining authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work. [51] Section 244 specifies the circumstances where the Commission must vary a supported bargaining authorisation to remove or add an employer’s name to the authorisation. It provides: [2025] FWCFB 131 12 244 Variation of supported bargaining authorisations—general Variation to remove employer (1) An employer specified in a supported bargaining authorisation may apply to the FWC for a variation of the authorisation to remove the employer’s name from the authorisation. (2) If an application is made under subsection (1), the FWC must vary the authorisation to remove the employer’s name if the FWC is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation. Variation to add employer (3) The following may apply to the FWC for a variation of a supported bargaining authorisation to add the name of an employer that is not specified in the authorisation: (a) the employer; (b) a bargaining representative of an employee who will be covered by the proposed multi-enterprise agreement to which the authorisation relates; (c) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under that agreement. (4) If an application is made under subsection (3), the FWC must vary the authorisation to add the employer’s name if the FWC is satisfied that it is in the public interest to do so, taking into account: (a) if the employer’s employees are in an industry, occupation or sector declared by the Minister under subsection 243(2B)—the declaration; and (b) if paragraph (a) of this subsection does not apply—the matters set out in paragraph 243(1)(b); and (c) any other matters the FWC considers appropriate. (4A) Despite subsection (4), the FWC must not vary the authorisation if subsection 243A(1) (employees covered by single-enterprise agreement that has not passed nominal expiry date) would prevent the FWC from making a supported bargaining authorisation specifying the employees. (5) Despite subsection (4), the FWC must not vary the authorisation if, as a result of the variation, the proposed multi-enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work. [52] Section 245 provides that the Commission is taken to have varied a supported bargaining authorisation to remove an employer’s name when the employer and all of their employees who are specified in the authorisation are covered by an enterprise agreement or a workplace determination that is in operation. [53] Section 246 provides that the Commission may, on its own initiative, provide to the bargaining representatives for the agreement such assistance that the Commission considers appropriate to facilitate bargaining for the agreement and that the Commission could provide if it were dealing with a dispute. The assistance may include directing a person who is not an employer specified in the authorisation to attend a conference if the Commission is satisfied that the person exercises such a degree of control over the terms and conditions of the employees who will be covered by the agreement that the participation of the person in bargaining is necessary for the agreement to be made. [2025] FWCFB 131 13 [54] An important consequence of the making of a supported bargaining authorisation is specified in s.172(7) as follows: Requirement for employer specified in supported bargaining authorisation (7) Despite any other provision of this Part, if an employer is specified in a supported bargaining authorisation that is in operation: (a) the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a supported bargaining agreement; and (b) the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of enterprise agreement. [55] Under s.12, a multi-enterprise agreement is a ‘supported bargaining agreement’ if a supported bargaining authorisation was in operation in relation to the agreement immediately before the agreement was made. Section 182(2) sets out the circumstances in which a multi- enterprise agreement which is not a greenfields agreement is made. It provides: If: (a) a proposed enterprise agreement is a multi - enterprise agreement; and (b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and (c) those employees have voted on whether or not to approve the agreement; and (d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement; the agreement is made immediately after the end of the voting process referred to in subsection 181(1). [56] Section 184 provides that if a multi-enterprise agreement is made and the agreement was not approved by the employees of all of the employers that made a request under s.181(1) in relation to the agreement, a bargaining representative must, prior to applying for its approval, vary the agreement so that it is expressed to cover only each employer whose employees approved the agreement and its employees. Approach to construction of Division 9 of Part 4-2 [57] The Full Bench in Application by UWU, AEU and IEU observed that the principal construction consideration in relation to the provisions of Division 9 of Part 4-2 is that the scheme for supported bargaining effected by the SJBP Act represents a modification of the previous low-paid bargaining scheme, rather than a complete innovation. The objective of the supported bargaining scheme is to make it more accessible and therefore more widely used.29 [58] The Full Bench explained that there has been no substantive change to the provisions in s.242 as to who may make an application for an authorisation and the content of such an application. The legislative purpose of improving accessibility and take-up is primarily achieved by the amendments to s.243 in respect of the circumstances in which the Commission is required to make an authorisation.30 [59] The Full Bench identified the key changes to s.243 as including: [2025] FWCFB 131 14 • The former requirement in subsection (1)(b) that the Commission be satisfied that it is ‘in the public interest to make the authorisation’ has been replaced by one that the Commission be 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’. This reflects a substantially lower statutory threshold for the required exercise of power. An appropriateness standard connotes that which is ‘fair and just’ or ‘suitable’ or ‘fitting’ and involves an evaluative assessment of a broader and less prescriptive nature than the previous public interest requirement. • The consideration of ‘the degree of commonality in the nature of the enterprises to which the agreement relates, and the terms of employment in those enterprises’ under former subsection (2)(e) has been replaced by ‘whether the employers have clearly identifiable common interests’, with examples of such common interests given in subsection (2). One of the examples, the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises, is substantially reflective of former subsection (3)(e), but the other two examples, a geographical location and being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory refer to circumstances which do not necessarily relate to commonality in the nature of the enterprises and their terms and conditions of employment. This indicates that a broader range of circumstances may be taken into account in assessing commonality of interests.31 [60] In relation to whether the FW Act evinces a preference for enterprise level bargaining in favour of multi-enterprise bargaining, the Full Bench said: We agree that the relevant parts of the objects of the FW Act in ss 3(f), 171(a) and 241(c) indicate that enterprise-level bargaining is intended to be the primary and preferred mode of agreement-making under the FW Act. We also agree that, where it is demonstrated that the employers and employees covered by a proposed supported bargaining authorisation have the capacity to bargain effectively at the enterprise level, this is a matter which may be taken into account under s 243(1)(b)(iv) as weighing against satisfaction that it is appropriate for the employers and employees to bargain together. However, this consideration should not be taken so far as to transform the appropriateness standard in s 243(1)(b) into a comparative ‘more appropriate’ standard whereby the Commission must be satisfied that supported bargaining under Division 9 of Part 4-2 is more appropriate than any other mode of bargaining available under that Part. This would constitute an impermissible and erroneous alteration to the statutory test.32 Consideration [61] We have considered the submissions made by the parties and all the evidence in our determination of this matter and the conclusions we have reached. Where parties have made the same or similar submissions about a matter, we have avoided repetition when referring to these submissions where possible. [62] We have addressed each of the applicable requirements below. Section 243(1) - When the FWC must make a supported bargaining authorisation [2025] FWCFB 131 15 [63] The requirements of s.243(1) which we must be satisfied of in this case are those provided in subsections (a), (b) and (c). Section 243(1)(a) — Has an application for the authorisation been made? [64] The requirement for an application to have been made suggests that the application must be validly made in accordance with the applicable statutory requirements.33 The application has been made by the AEU and HACSU, both of which are registered employee organisations for the purposes of the FW Act. The AEU and HACSU submitted that each of them is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement pursuant to s.242(1)(b).34 [65] There was no dispute that HACSU has standing to make the application. However, McCallum and Mambourin both submitted that the AEU does not have standing to make the application as it is not entitled to represent the industrial interests of their respective employees who will be performing work under the Proposed Agreement. Submissions [66] The AEU submitted that disability support workers are covered by Rule 5(4)(f) of the AEU’s Rules, and relevantly that they are persons who are: (i) employed to teach and/or supervise teaching in or by registered non-residential services including day training centres, adult units… … (ii) employed in Victoria to teach and/or supervise teaching of people with social, physical, sensory, educational and intellectual disabilities.35 [67] Mambourin submitted that its support workers are not required to have education qualifications to perform their roles, and they do not have such qualifications. As such, they do not appear to be employed to teach, for the purpose of Rule 5(4)(f) of the AEU’s Rules.36 [68] McCallum submitted that the AEU has no coverage in general disability services and that it only has coverage in disability services education. This is supported by the language of the AEU rules which reference coverage as being restricted to persons ‘employed to teach and/ or supervise teaching’.37 [69] McCallum submitted that it does not operate any programs in pursuit of or incidental to disability services education or teaching and the inclusion of the reference to education and teaching is an important one which denies the AEU coverage of McCallum employees.38 [70] McCallum submitted that since it joined the NDIS in 2017 the nature of the process for the services it provides to participants has changed and whilst it has continued to operate under the AEU zombie agreement in terms of pay and conditions, those employees can no longer properly be described as ‘Instructors’ but are disability support workers.39 McCallum submitted that modern centre based and community based group activities do not provide ‘instruction, teaching and/or training’ unless they are specialist education facilities which McCallum does [2025] FWCFB 131 16 not have and therefore McCallum’s disability support worker staff cannot be said to meet the definition of ‘Instructors’ as contemplated by the AEU.40 Findings [71] The evidence provided by Ms Gillespie is that the AEU has members who support persons with disability in ‘day services’ and ‘community services’. HACSU also have members working in day services and community services as well as residential and in home support.41 The AEU rules appear to use language to describe its disability services coverage which may no longer be fit for purpose when referring to contemporary community-based disability services in that there is no longer a teaching requirement. Nevertheless, the purpose of the work, which is to enhance the lives of persons with disability in a community-based setting, appears to be the same, albeit involving a shift from teaching to person centred planning and support. We have doubts about whether this shift in emphasis in the delivery of community-based disability services would result in the AEU rules no longer covering employees at Mambourin and McCallum. [72] However, this is not a matter which we are required to determine for the purpose of the application before us. Section 242(2) simply requires the application to be made by an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement. There is no requirement that the application is made by an employee organisation that is entitled to represent the industrial interests of an employee working for each of the employers who will be covered by the agreement. It is likely that the AEU is entitled to represent the industrial instruments of at least one employee in relation to work to be performed under the agreement. For example, George Gray,42 Distinctive Options and Noweyung43 all operate day services amongst other services and do not dispute that the AEU and HACSU share coverage of the Respondent. However, even if this is not the case, the rules of the Health Services Union establish that it is entitled to represent the industrial interests of an employee in relation to work to be performed under the Proposed Agreement. In this regard Rule 3A(b) provides that: The Union shall consist of an unlimited number of persons ….. in the States of Victoria, Queensland, Tasmania and in the Australian Capital Territory, in the provision of care and training to the intellectually disabled and/or physically disabled and/or psychiatrically disabled and/or developmentally disabled and work ancillary thereto in hostels, day care centres, and homes (including dwellings) but excluding trained teachers employed as such and in the States of Victoria and Queensland and the Australian Capital Territory, teacher aides employed as such ….. [73] The eligibility rules go on to refer to a number of exceptions which are not relevant to the application before us. Based on the rules of the Health Services Union, we are satisfied that HACSU has standing to make the application. [74] The amended application meets the requirements of s.242(2) as it specifies the employers and employees covered by the Agreement. The application has not been made in [2025] FWCFB 131 17 relation to a proposed greenfields agreement. We are therefore satisfied that a valid application for the authorisation has been made as required by s.243(1)(a). Section 243(1)(b) — Is it appropriate for the employers and employees that will be covered by the agreement to bargain together? [75] The consideration required under s.243(1)(b) requires a broad evaluative judgment to be made having regard to the matters specified in subsections (i)-(iv). A requirement to have regard to a matter means that it must be treated as a matter of significance in the decision- making process. However, no single matter in s.243(1)(b) is to be regarded as being determinative as to whether the requisite state of satisfaction is reached.44 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) Evidence and Submissions AEU [76] The AEU submitted that commonality of pay and conditions across an industry or sector, or whether employees are paid at or close to the relevant modern award rates may support a conclusion that it is appropriate that the employers and employees bargain together. In other cases, the level or divergent nature of pay and conditions within an industry or sector may be a factor weighing against a finding of appropriateness although, no consideration would be determinative of the Commission’s conclusion.45 HACSU [77] Ms Carter said that it is difficult to provide accurate data about prevailing rates in the disability sector because data about the size and makeup of the NDIS workforce is limited due to the absence of a national census of disability support workers and limitations relating to occupational coding through the Australian and New Zealand Classification of Occupations (ANZSCO). Currently, disability support workers are predominantly captured in the Australian Bureau of Statistics (ABS) Labour Force Surveys and Census data and the ANZSCO classification of ‘Aged and Disabled Carers’ (4231).46 [78] Ms Carter said that it is also difficult to obtain accurate data about the disability workforce because there is not a mandatory registration scheme or a requirement for all disability support workers to complete the NDIS Worker Orientation Modules that enables the sector to capture information about the workforce. Although it is difficult to obtain accurate data, low rates of pay prevail because the NDIS DSW Cost Model is based on the ERO rates. The most common classifications in the SCHADS Award in the disability sector are levels 2 and 3, with most disability support workers classified at level 2.47 [79] HACSU submitted that there is evidence which clearly demonstrates there are prevailing low rates of pay in the disability sector. That evidence is as follows: a. In the Disability Royal Commission Final Report (DRC Report) it is identified that the majority of the disability workforce are employed under the SCHADS Award. [2025] FWCFB 131 18 b. The NDIS DSW Cost Model caps the cost of disability support workers to the SCHADS Award minimum rates of pay. Above-award rates of pay are rare in the disability sector because the disability support providers are reliant on NDIS funding and any above- award payments come at an additional cost to the disability support provider. c. Even in circumstances where enterprise agreements exist in the sector, the rates of pay provided by those Agreements are tethered to the SCHADS Award or rarely exceed the rates of pay provided by the SCHADS Award due to the constraints of the NDIS DSW Cost Model. d. Jobs and Skills Australia provide a summary of the most specific ABS data available, concerning both aged and disability carers based on ANZSCO classification 4231. The data identified that out of 293,500 employed as aged and/or disability carers – approximately 73% of which are women - the median earnings for full-time employees, before tax, is about $1,382.00 per week. By contrast the median earnings for full-time employees across ‘all occupations’ is about $1,593.00 per week. These statistics show that aged and disability employees are low paid, having weekly earnings that are approximately 14% below those of all employees. e. The disability sector has been specifically identified as being a low-paid industry in which the supported bargaining scheme was intended to be utilised.48 [80] HACSU submitted that the employees of the Respondents are paid at SCHADS Award rates and therefore the prima facie position is that they are deemed to receive low rates of pay. [81] HACSU submitted that rates in the SCHADS Award cannot be viewed as ‘relatively high’ because the role of modern awards under Australia’s industrial relations system is to provide a minimum floor or safety net of wages and conditions. Instead, the National Disability Insurance Agency (NDIA) through the NDIS DSW Cost Model has reappropriated the SCHADS Award as a ceiling on wages and conditions across the disability sector. In any event, the minimum weekly rates of pay attaching to the most common SCHADS classifications in the disability sector sit well below the average weekly ordinary time earnings for full time adults in Australia, which the ABS recently put at $1,838.60.49 [82] HACSU submitted that the statutory task, which is to have regard to the ‘prevailing pay and conditions within the relevant industry or sector’, requires consideration of whether low rates of pay prevail in the industry; and whether employees in the industry are paid at or close to the relevant award rates.50 ACTU [83] The ACTU submitted that there is variation across the broader industry that includes the disability sector between wages set by modern awards, those set by collective agreements and those set by individual arrangements. In the Health care and social assistance industry, average weekly total cash earnings of full-time non-managerial employees paid at the adult rate for award reliant workers is $1,810.30, under collective agreements it is $2,062.70 and under individual arrangements it is $1,678,00 (the average being $1910.40).51 [84] The ACTU submitted that the rates of pay for personal carers are lower than for the broader industry as a whole. Average weekly total cash earnings for full-time non-managerial workers in this cohort are $1,443.60 for award reliant workers, $1434.50 for those workers [2025] FWCFB 131 19 covered by a collective agreement and $1,371.40 for those on individual agreements (the average being $1,429.60.)52 [85] For aged and disabled carers, the average weekly total cash earnings for all employees are $942.00 under awards and $986.60 under enterprise agreements (an average of $921.50). Men in this cohort have average weekly total cash earnings of $1,011.80 and women have average weekly total cash earnings of $886.70.53 [86] The ACTU submitted that this information shows that: a. Workers in the broader industry are paid at or around award wages; b. Workers in the occupational category are paid at or around award wages, albeit at a lesser rate; c. Workers in a more specific occupational category are paid at or around award wages, albeit at an even less rate; and d. That women in the industry are paid less than men.54 ASTERIA [87] ASTERIA submitted that it is relevant for the Commission to take into account the wage boost that was achieved from the ERO. The ERO means that a Certificate III-qualified employee under the SCHADS Award is entitled to be paid a minimum hourly rate of $32.21. The Certificate III in Individual Support is a 6 month full time course. In contrast, the certificate III ‘classification’ across other industries is generally $26.18. Arising from the ERO therefore, a Certificate III rate of pay for a disability support worker is 23% higher than a Certificate III rate of pay in other industries, and 7% higher than the Certificate III in Aged Care. [88] ASTERIA submitted that the Certificate III rate of pay under the SCHADS Award is ‘relatively high’ compared to the rate of pay for equivalent qualifications and work in other industries.55 Community Accessability [89] Community Accessability submitted that following the Commission’s Equal Remuneration Case in relation to the SCHADS Award, the pay and conditions in this sector are high relative to other sectors paying at or close to modern award rates. More importantly, even if the Applicants were to make out that the prevailing rates of pay in this sector are ‘low’ (which is not conceded), this does not make joint bargaining in this case any more appropriate. Because there is no funding available for a pay increase, joint bargaining is highly unlikely to result in a pay increase. The prevailing levels of pay in the industry, therefore do not make joint bargaining any more appropriate in this case.56 [90] Community Accessability submitted that the meaning of ‘low paid’ does not merely call for a comparison to the award rates, but requires comparison to pay in other sectors and to the levels within industrial instruments that employees are paid at.57 [91] Community Accessability submitted that there is nothing in the statute or the surrounding context that would indicate ‘low’ is intended to focus purely on the pay relative to [2025] FWCFB 131 20 the legal minimums in the industry/profession. Doing so would ignore (i) the ‘levels’ under which employees are at within awards, which has previously been recognised by the Commission as a relevant factor with respect to the meaning of ‘low-paid’ in the low-paid bargaining scheme, and (ii) how the award rates in that industry compare to rates in other sectors.58 [92] Community Accessability submitted that when consideration is given to these factors, there is insufficient evidence to demonstrate employees are ‘low-paid’ because the SCHADS Award rates of pay are relatively high compared to rates of pay in other awards.59 [93] Community Accessability submitted that because there is no prospect of joint bargaining leading to higher rates of pay, low rates of pay do not make joint bargaining more appropriate.60 Life Skills, George Gray, Distinctive Options and Noweyung [94] Life Skills, George Gray, Distinctive Options and Noweyung submitted that disability support workers who are paid a weekly wage that includes the ERO increases are not paid ‘at or close to the award rates of pay’ as they are paid above the SCHADS Award minimum rates of pay. They submitted that even if the ERO rates of pay are found to be the minimum rates of pay under the SCHADS Award, these rates of pay cannot be characterised as a low rate of pay as the social and community services classifications Level 2 to Level 8 have been subject to significant increases (of between 23% to 45%) between 2012 to 2020 in addition to the annual wage increases arising from the Commission’s Annual Wage Review.61 Windarring [95] Windarring submitted that the Applicants should adduce evidence of the prevailing pay and conditions within the disability sector, not just the employees of the Respondents.62 Windarring submitted that the evidence of aggregated labour force data has no probative value given that there is no certainty that the data has not been skewed towards the realities of workers in the aged care sector.63 [96] Windarring submitted that the Applicants’ comparison between the weekly rates in the ERO and the all jobs average weekly earnings in Australia fails to consider the inherent differences in skill, education requirements and responsibilities across various occupations. Windarring also submitted that the median, rather than the average, is a more reliable measure of central tendency. This is supported by the meaning of low paid in the former low paid bargaining provisions of the FW Act being tethered to the median adult ordinary time earnings.64 [97] Windarring submitted that the Applicants acknowledge that without an increase in NDIS funding, the prospect of any enterprise agreement increasing rates of pay within the disability sector is low which brings the purpose of the application into doubt.65 [98] Windarring submitted that the assessment of whether low rates of pay prevail in each sector must be contextualised with the constraints of the NDIS pricing framework. In the absence of comparable constraints in other sectors, what might be considered low pay in a different context may not hold true within the disability sector. It is therefore inappropriate to [2025] FWCFB 131 21 assert that the disability sector is low paid in comparison to other sectors whose funding is not highly dictated by substantial government funding models.66 Windarring submitted that it is arguable that the sector is well paid when employees are paid the maximum or close to the maximum amount that employers can afford to pay.67 Mambourin [99] Mambourin submitted that the weekly rate for a disability support worker with around one year of experience ($1,223.85) is favourable compared to pay rates for similar work in other streams or awards. Accordingly, it is not clear that the rates of pay in the disability sector should be considered to be low.68 [100] Mambourin submitted that the Commission will need to consider whether the pay and conditions across the Respondents are largely consistent or divergent for the purpose of determining whether it is appropriate for the parties to bargain together. Mambourin notes that the AEU appears to concede that divergent pay and conditions within an industry or sector would be a factor weighing against a finding of appropriateness.69 [101] Mambourin submitted that it was previously covered by the Mambourin Enterprise Inc Disability Services Victoria (Part 1) Collective Agreement 2008 (Mambourin Agreement) which was terminated by the Commission effective 6 November 2020. Mambourin currently employs all of the employees who would be covered by the proposed authorisation (excluding warehouse staff and supported employment) either in accordance with the SCHADS Award, or on permanent employment agreements with a fixed annual salary. Mambourin continues to provide for long service leave accrual at the rate of 13 weeks of leave after 10 years for all staff who were employed by Mambourin prior to 1 January 2020, and who were previously covered by the Mambourin Agreement. Attempts to negotiate a new enterprise agreement have so far been unsuccessful, however Mambourin intends to continue attempting to negotiate an agreement with its staff and the AEU (subject to the possible application of section 172(7) of the Act). Mambourin’s current pay rates for the employees who would be covered by the proposed authorisation (excluding warehouse staff and supported employment services, and with the exception of staff on annual salaries) are marginally higher than the SCHADS Award rates. 34 of Mambourin’s staff who may be covered by the proposed authorisation (depending on the breadth of the term ‘employed in disability support work’ used in the application) are on total remuneration packages, and are not paid directly under the SCHADS Award.70 McCallum [102] McCallum accepts that the prevailing pay and conditions are generally aligned with the SCHADS Award.71 Having regard to the ERO case in the disability sector and comparing that against the equivalent comparative classifications under the Children’s Services Award and other awards, McCallum submitted that employees in the disability sector should not be classified as low paid despite being paid at or around award rates.72 [103] McCallum itself pays team leaders at a higher rate than what is funded for supervision under the NDIS DSW Cost Model (Level 3), but otherwise follows the appropriate SCHADS Award rates of pay.73 [2025] FWCFB 131 22 Findings What are the prevailing pay and conditions in the disability sector? [104] In Application by UWU, AEU and IEU, the Full Bench observed that the reference to ‘the relevant industry or sector’ in s.243(1)(b)(i) plainly indicates that the assessment required will extend beyond the pay and conditions of the employees to whom the authorisation sought will apply.74 Consequently, an applicant for an authorisation might be expected to adduce evidence concerning prevailing pay and conditions within the relevant sector.75 [105] The AEU and HACSU relied upon the DRC Report and the NDIS DSW Cost Model to submit that the majority of the disability workforce are employed under the SCHADS Award and paid in accordance with the ERO. The minimum rates of pay in the disability sector are determined by the ERO and the NDIA provides funding according to these rates. They also submitted that even in circumstances where enterprise agreements exist in the sector, the rates of pay provided by those agreements are determined by the SCHADS Award/ERO or rarely exceed the rates of pay provided by the SCHADS Award/ERO due to the constraints of the NDIS DSW Cost Model. This was not seriously contested by the Respondents. In the circumstances, we accept, based on the evidence before us, that rates of pay and conditions that are the same as, or close to, the minimum rates of pay in the ERO and the conditions in the SCHADS Award are prevalent in the disability sector. Do low rates of pay prevail in the disability sector? [106] In Application by UWU, AEU and IEU, the Full Bench observed that ‘low rates of pay’ will generally prevail in an industry or sector if employees are paid at or close to the award rates of pay for their classification,76 however, in a particular case, a prevailing rate of pay which is at or close to the relevant award rate may not be regarded as a ‘low rate of pay’ because the award rate itself is relatively high.77 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.78 [107] Most of the Respondents have not sought to cavil with the findings of the Full Bench in Application by UWU, AEU and IEU that ‘low rates of pay’ will generally prevail in an industry or sector if employees are paid at or close to the award rates of pay for their classification. However, the Respondents point to rates of pay being set by the ERO, and not the SCHADS Award, and that the rates of pay are higher compared to other awards, to submit that the prevailing rates of pay are not low. [108] Submissions from the Respondents also include that it is necessary to not only compare award rates, but also pay in other sectors and the levels within industrial instruments that employees are paid, to determine whether there are ‘low rates of pay’.79 It was submitted that there is nothing in the statute or the surrounding context that would indicate ‘low’ is intended to focus purely on the pay relative to the legal minimums in the industry/profession. Doing so would ignore the ‘levels’ under which employees are at within awards, and how the award rates in that industry compare to rates in other sectors. Windarring urges an interpretation of ‘low rates of pay’ in the context of the constraints of the NDIS pricing framework and suggests that [2025] FWCFB 131 23 what may be considered low paid in a different context may not be the case within the disability sector. [109] Many of the Respondents sought to compare the pay of disability support workers with employees under the Children’s Services Award given that the Full Bench in Application by UWU, AEU and IEU found that low rates of pay prevailed in the Early Childhood Education and Care (ECEC) sector because most employees in the ECEC sector were employed pursuant to that award and received award rates of pay.80 This is an appropriate comparison given that both ECEC employees and disability services employees are largely award dependent. We note that since the hearing of this matter, the Expert Panel in the Gender-based undervaluation – priority awards review case.81 has indicated a provisional view that there should be a new, simplified classification structure in the Children’s Services Award which is substantially based on the qualifications framework for the ECEC sector, with the rates of pay structured by reference to the Caring Skills benchmark rate.82 If implemented, this would result in the rates of pay for a level 3 educator being the same as a Level 2, Pay point 1 disability support worker under the ERO. [110] Some of the Respondents sought to compare rates of pay for disability support workers with rates of pay for employees covered by other awards, including the Legal Services Award 2020 and the Nurses Award 2020. We do not regard these comparisons as particularly useful in circumstances where there is no evidence before us about the extent to which employees covered by those awards are paid either the minimum rates of pay prescribed by those awards or higher rates set by enterprise agreements or other instruments or contracts. [111] This is the sixth occasion that the Commission has considered a supported bargaining application and the fourth occasion in which a supported bargaining authorisation has been sought in relation to employees covered by the SCHADS Award and ERO. Supported bargaining authorisations have been granted in relation to employees covered by the SCHADS Award and ERO in Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others (ASU v ACTCOSS),83 Australian Municipal, Administrative, Clerical and Services Union v Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal, Young People's Legal Rights Centre Inc T/A Youthlaw (ASU v Inner Melbourne Legal and Youthlaw),84 and The Health Services Union & The Australian Education Union v Alkira Disability Services Ltd T/A Alkira Centre and Others (HSU and AEU)85 [112] In HSU and AEU, Commissioner Lee said that he was satisfied, based on the evidence before him, that the prevailing pay and conditions within the disability sector are at or close to the award rates and conditions provided in the SCHADS Award. Further, Commissioner Lee noted that the SCHADS Award rates of pay are not ‘relatively high’ and that the most commonly used classifications in the SCHADS Award in the disability sector sit well below the average weekly ordinary time earnings for a full-time adult (most recently $1923.40).86 [113] In ASU v ACTCOSS,87 Deputy President Hampton observed that the following matters in relation to pay weighed in favour of making the authorisation: • Nationally, the majority of social and community services (SACS) workers are award dependent and that over award payments are uncommon in the industry.88 [2025] FWCFB 131 24 • Even outside the lower classification levels of the SCHADS Award, workers engaged in degree qualified positions often receive a low rate of pay relative to their level of qualification, experience, role complexity, and responsibility.89 • SACS workers in the community sector tend to earn less than their public sector counterparts for comparable roles, despite the adjustment of pay rates undertaken through the ERO increases.90 • SACS workers generally have less beneficial conditions of employment in comparison with ACT Government employees when it comes to leave and other entitlements.91 [114] In ASU v Inner Melbourne Legal and Youthlaw,92 Deputy President Hampton observed that the majority of the employees engaged by the employers are generally paid by reference to the SCHADS Award classifications and rates, with some likely exceptions, and that some of the employees who would be covered by the authorisation are award reliant and low paid.93 [115] The rates of pay for disability support workers in the SCHADS Award were recently considered by the Expert Panel in the Gender-based undervaluation – priority awards review case.94 In that case, the Expert Panel observed that the evidence before it amply demonstrated that disability support workers deal with persons with a wide range of conditions and are required in each case not merely to engage in functions associated with the direct physical care of clients but also to be constantly engaged in verbal and non verbal communication with clients in order to be responsive to and meet their ongoing physical, intellectual and emotional needs,95 and that the requirements of the NDIS have made disability support work more varied and complex than previously.96 [116] The Expert Panel found that based upon this evidence and the findings made by the Queensland Industrial Relations Commission in the Queensland CSCA Award decision and by this Commission in the SACS Equal Remuneration decisions: • the minimum wage rates prescribed by the SCHADS Award for employees within the classifications in Schedules B, C and E do not properly reflect the value of the work to which those classifications apply and that this is the case for reasons related to gender.97 • The work to which the classifications apply is caring work involving the exercise of ‘invisible’ skills.98 • The workforce which performs this work is, and has historically been, female- dominated.99 • The rates of pay applying to the classifications in Schedules B, C and E are not the product of any proper work value assessment by this Commission or the Australian Industrial Relations Commission of the skills utilised in undertaking work of this nature.100 • There has never been proper recognition of the skills involved in undertaking the work covered by Schedules B, C and E when setting award wage rates and this has operated to the disadvantage of a highly-feminised workforce.101 • Although the ERO rates which apply to schedule B were not made in the exercise of the award-making and variation powers under the FW Act, the way in which the rates were set essentially proceeded on what may be characterised as work value grounds within the meaning of s.157(2A). They were fixed on the basis that they ensure equal remuneration for work of equal or comparable value and can therefore [2025] FWCFB 131 25 be relied upon as being free of assumptions based on gender. The ERO rates are therefore broadly indicative of what the SCHADS Award rates would be if they were properly based on a gender-neutral assessment of work value.102 [117] The effect of the ERO is that strictly speaking, disability support workers are not paid the SCHADS Award rates of pay but at 123% of the SCHADS Award rate of pay (with respect to level 2 employees). The Applicants correctly contend that the ERO is the minimum rate of pay, that most of the Respondents pay employees at this minimum rate and that the NDIA provides funding based upon this rate. [118] The SCHADS Award has eight classification levels. The NDIS DSW Cost Model indicates that it assumes that disability support workers will be classified at level 2, 3 or 4 of the SCHADS Award, depending upon whether they are performing the work of a Disability Support Worker 1, 2, 4, or 4 as determined by the NDIA.103 [119] The evidence of Respondents who provided information about the classification of their employees establishes that they employ the majority of their disability support workers at level 2 and pay them in accordance with the ERO level 2 rate. The ERO weekly rates of pay for a level 2 worker at the time of the hearing104 were: Pay point 1: $1,269.73 Pay point 2: $1,309.58 Pay point 3: $1,349.43 Pay point 4: $1,385.35 [120] This is consistent with the NDIS DSW Cost Model105 which states that Disability Support Level 1 worker is assumed to have a SCHADS classification of level 2, pay point 3. It is also consistent with the classification descriptors in the SCHADS Award which specifically refer to the delivery of disability services in level 2 and level 3. [121] We accept that the rates of pay for disability support workers are higher than the current rates of pay for employees covered by the Children’s Services Award. However, this does not establish that the prevailing rates of pay for disability support workers are high. Further, the fact that disability support workers are paid above the SCHADS Award rates in accordance with the ERO does not automatically lend itself to a conclusion that the rates are high. The Respondents have pointed to numerous examples where the rates of pay in the disability sector are higher than other sectors. It is also likely that there are sectors where the prevailing rates of pay are higher than those in the disability sector. There is nothing in the statute which indicates that the expression ‘low rates of pay’ should be construed in a narrow way which requires comparison only with other award dependent roles or roles that have similar skill requirements and characteristics. To do so would undermine the legislative purpose of improving accessibility and take-up for multi-enterprise bargaining by employers and employees in sectors traditionally excluded from enterprise bargaining. [122] The Respondents have urged us to exercise caution when referring to statistics to make findings about prevailing rates of pay, however ABS statistics are a far more reliable indicator of the prevailing rates of pay across the economy than the award rates referred to by the Respondents. For the period from August 2023 to August 2024, the median weekly earnings in [2025] FWCFB 131 26 main job was $1,396.00 and for full time employees it was $1,700.106 The average weekly ordinary time earnings for full-time adults was $1,975.80 in November 2024.107 It is not entirely accurate to compare these figures to the Level 2 ERO rates as the Level 2 rates do not include penalty rates and overtime. However, it should be noted that in many cases, disability support workers will be receiving less than the full time ERO rate because of the prevalence of part- time and casual work in the sector.108 [123] We find that low rates of pay prevail in the disability sector because: • most employees are employed in the lower levels of the SCHADS Award classification structure and specifically at level 2, • most employees are paid at the minimum rate determined by the ERO, • the level 2 ERO full time rates at the time of the hearing ($1,269.73-$1,385.35)109 are lower than: o median weekly earnings ($1,396.00), o the median weekly earnings for full time employees ($1,700) and o the average weekly ordinary time earnings for full-time adults ($1,975.80). [124] These findings weigh in favour of granting the authorisation sought. Whether the employers have clearly identifiable common interests: s.243(1)(b)(ii) [125] Most of the Employers filed evidence addressing geographical location, types of services provided, extent of NDIS funding, workforce composition, rostering practices and applicable industrial instruments. A number of the parties produced an aide memoire which assisted in producing the summary below.110 Evidence Geographical Location [126] In relation to geographical location: a. All Respondents have worksite locations in Victoria. b. Ten Respondents operate worksites in regional Victoria. c. At least three Respondents operate worksites in both regional Victoria and Metropolitan Melbourne.111 Types of disability services [127] In relation to types of disability services: a. All of the Respondents provide disability services. b. Twelve of the Respondents provide day services, group care or centre-based activities. c. Seven of the Respondents provide residential services (supported independent living). d. Nine of the Respondents provide respite services (short term accommodation). [2025] FWCFB 131 27 e. Eight of the Respondents provide assistance with community participation or community-based supports. f. Nine of the Respondents provide assistance with accessing/maintaining employment. g. Seven of the Respondents provide assistance with support coordination or plan management. h. A number of the Respondents provide services outside of the disability sector. ASTERIA provides out of home care services for children and young people in the child protection system. Menzies and Community Accessability both provide aged care services. Life Skills is a community service organisation, providing a broad range of programs, events, activities and education and training pathways to all members of the community, rather than solely to people with a disability. Amicus provides non-NDIS funded community services.112 Number of Employees [128] In relation to number of employees: a. Three of the Respondents have less than 50 employees in disability support services. b. Five of the Respondents have between 100 to 200 employees in disability support services. c. Two of the Respondents have more than 200 employees in disability support services.113 NDIS funding [129] In relation to NDIS funding: a. All Respondents receive some portion of NDIS funding for disability services. b. Amicus and ASTERIA receive a mixture of NDIS funding and State Government funding.114 c. Distinctive Options, George Grey, Life Skills and Noweyung are ‘predominantly funded’ by the NDIS.115 d. Mambourin and Windarring receive 89% or more of their revenue through NDIS funding.116 e. Community Accessability provides both NDIS funded services and non-NDIS funded services.117 SCHADS Award classification [130] Employees of the Respondents range between the following classifications under the SCHADS Award: a. Employees of Amicus range between Levels 2.1 to 7.3.118 b. Employees of Community Accessability range between Levels 1 to 8.119 c. Employees of Menzies are predominantly employed at Level 2.120 d. Employees of Mambourin range between Levels 1 to 4.121 e. Employees of McCallum range between Levels 2 to 8.122 [2025] FWCFB 131 28 Hours of work/rostering practices [131] In relation to hours of work and rostering practices: a. At Aurora, employees generally work between 7am to 5.30pm, Monday to Friday. b. At Community Accessability, there is a wide range of hours depending on activities, for example, 24/7 (home support), 8am to 5pm (day programs) with a goal of consistency of carers. c. At Distinctive Options, Day Services operate generally 9am to 15:30, Monday to Friday. Residential Services, Independent Living and Supported Travel operate 24 hours per day, 7 days per week. d. George Gray operates mainly between 9:00 and 15:30, Monday to Friday. e. Life Skills operates between 9:00 and 16:30, Monday to Friday. f. McCallum operates a variety of hours for different NDIS Registration Type – from 8.45am to 3.30pm, 4 days per week (Community Participate) to 24/7 for various other activities. g. Windarring operates 24/7 for certain services. Above award conditions of employment [132] Amicus submitted that it does not provide additional benefits to staff under the SCHADS Award, unless they perform a sleepover shift. Payments for sleepovers are in accordance with the SCHADS Award. Any ‘active’ time during the eight hour sleepover is paid at the night shift rate, after the first hour. In addition, instead of paying the sleepover allowance under the SCHADS Award, Amicus pays a flat rate of $100.123 [133] Given its remoteness, ASTERIA decided to pay 12% superannuation in July 2021 to attract new employees.124 [134] Employees of Aurora are currently covered by a zombie agreement, the Whittlesea District ATSS Disability Services Victoria (Part 1) Collective Agreement (2008). Aurora submitted that if this agreement is terminated, it would honour to the best of its capacity some of the above-award entitlements that its employees would no longer be receiving. For example, Aurora’s Committee of Management was prepared to allocate seven days of ex gratia leave to all employees between 27 December 2023 to 5 January 2024 so that employees could have a two week end-of-year break in addition to the leave entitlements provided to them by the SCHADS Award. It is Aurora’s intention that this will continue in years to come, provided that organisational finances can sustain this.125 Aurora states that its support workers are paid at level 3 of the SCHADS Award.126 [135] The majority of Community Accessability’s employees are classified at Level 2 of the SCHADS Award.127 To incentivise employees to work sleepover shifts, Community Accessability pays an allowance of $150 which is more than what is required under the SCHADS Award.128 [136] McCallum has recently undergone an extensive six month process of consultation with staff relating to the planned transition away from zombie agreements and in that process, it [2025] FWCFB 131 29 identified particular benefits it can offer to staff upon transition to the SCHADS Award, but which are unique to its organisation. These include the introduction of a number of above award conditions being by way of policy provisions with respect to matters like sleepover allowances, parental leave and wellbeing leave days.129 [137] Mirridong provides Day Services Support Workers with six weeks annual leave (and four weeks holiday loading) and Residential Support Workers with five weeks annual leave.130 [138] Mambourin provides 13 weeks of long service leave after 10 years to all staff who were employed by Mambourin prior to 1 January 2020, and who were previously covered by the Mambourin Agreement. Mambourin’s current pay rates for the employees who would be covered by the proposed authorisation are marginally higher than the SCHADS Award rates.131 Workforce composition [139] The following table shows the employment type and gender of employees for each of the Respondents where this information is available: Respondent Employment type Gender Amicus132 a. 31 full-time employees b. 29 part-time employees c. 133 causal employees a. 74 male employees b. 125 female employees c. 6 unspecified employees ASTERIA - - Aurora - - Community Accessability133 a. 29 full-time employees b. 37 part-time employees c. 118 casual employees - Menzies134 a. 11 permanent employees b. 11 casual employees a. 4 male employees b. 18 female employees Distinctive Options and Noweyung135 a. 18 full-time employees b. 113 part-time employees c. 54 causal employees a. 46 male employees b. 141 female employees George Gray136 a. 3 full-time employees b. 18 part-time employees c. 10 causal employees a. 4 male employees b. 27 female employees Life Skills137 a. 1 full-time employee b. 3 part-time employees c. 4 causal employees a. 7 female employees b. 1 non-binary employee Mambourin138 a. 96 full-time employees b. 180 part-time employees c. 77 causal employees a. 173 male employees b. 180 female employees McCallum139 a. 53 full-time employees b. 374 part-time employees a. 242 male employees b. 318 female employees [2025] FWCFB 131 30 c. 136 casual employees Mirridong - - Windarring140 a. 24 full-time employees b. 127 part-time employees c. 18 casual employees a. 62 male employees b. 107 female employees Industrial Instruments The following table shows the industrial instruments which apply in relation to each of the Respondents: Respondent Industrial Instruments Amicus141 SCHADS Award ASTERIA a. Asteria Services Inc Disability Services Victoria (Part 1) Collective Agreement 2008 b. SCHADS Award Aurora142 Whittlesea District ATSS Disability Services Victoria (Part 1) Collective Agreement (2008) Community Accessability143 a. Murray Valley Centre Disability Services Victoria (Part 1) Collective Agreement 2008 b. SCHADS Award c. Supported Employment Services Award 2020 (SES Award) d. Passenger Vehicle Transport Award 2020 (Transport Award) Menzies SCHADS Award Distinctive Options and Noweyung144 a. Distinctive Options Day Services Collective Agreement 2006 – 2009 b. Noweyung Ltd Disability Services Victoria (Part 1) Collective Agreement 2008 c. Noweyung Ltd and HSU Disability Services Union Collective Agreement 2006 – 2009 George Gray145 a. George Gray Centre Disability Services Victoria (Part 1) Collective Agreement 2008 Life Skills146 a. Moe Life Skills Community Centre Disability Services Victoria (Part 1) Collective Agreement 2008 b. Moe Life Skills Community Centre and HSU Disability Services Union Collective Agreement 2006 – 2009 c. SCHADS Award [2025] FWCFB 131 31 Mambourin147 a. SCHADS Award b. SES Award c. Storage Services and Wholesale Award 2020 McCallum148 a. McCallum Disability Services Inc and HSU Disability Services Union Collective Agreement 2006 – 2009 b. Murdoch Community Services Inc. and HSU Disability Services Union Collective Agreement 2006 – 2009 c. The McCallum Disability Services Disability Services Victoria (Part 1) Collective Agreement 2008 d. SCHADS Award Mirridong149 a. Mirridong Services Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005 b. SCHADS Award Windarring150 a. Windarring ATSS Disability Service Victoria (Part 10) Enterprise Agreement 2005 b. SCHADS Award c. SES Award Submissions HACSU [140] HACSU submitted that at this stage of the enquiry the Commission is not weighing points of commonality and points of difference but simply asking whether there are clearly identifiable common interests. Differences may be relevant under s.243(1)(b)(iv). Alternatively, they might be relevant to the general state of satisfaction about appropriateness. The differences could be taken into account that way if there was something about those differences that bore on the question of appropriateness. However, differences should not be taken into account in determining whether the employers have clearly identifiable common interests for the purposes of subsection s.243(1)(b)(ii).151 [141] HACSU submitted that similar to Application by UWU, AEU and IEU, the Respondents have an overriding common interest, being they all operate disability services businesses and employ staff to perform disability support work in those services. This gives rise to a number of concomitant common interests, including: (a) Although the majority of Respondents operate on long-expired zombie agreements, the rates of pay are aligned to the SCHADS Award. (b) All of the Respondents’ zombie agreements have the same or substantially the same terms and conditions based on pre-2010 agreements. (c) All of the Respondents’ zombie agreements have terms and conditions that are above SCHADS Award terms and conditions which include but are not limited to: [2025] FWCFB 131 32 i. 21 days personal leave ii. 6 weeks annual leave iii. shift penalty provisions that are cumulative on weekend penalties (resulting in employees having access to these allowances over 7 days as opposed to 5 days in the SCHADS Award) iv. Higher sleepover allowances v. First Aid Allowance vi. Accident make up pay (d) All Respondents are registered NDIS providers and are covered by a common regulatory framework, the ‘National Disability Insurance Scheme Quality and Safeguarding Framework’ (NDIS Framework) which includes the Respondents being subject to the authority and regulatory powers of the NDIS Quality and Safeguards Commission and being required to follow the NDIS Code of Conduct and the NDIS Practice Standards, being part of a Provider Registration Scheme and ensuring that specific workers have a screening clearance that meets the requirements of the NDIS Practice Standards. (e)The Respondents are all subject to common arrangements for the funding of disability services by the Commonwealth. The funding mechanism is the NDIS.152 [142] HACSU submitted that in addition, several other common interests exist in this case, including but not limited to: i. The Respondents’ capacity to bargain is directly impacted by the NDIS funding. ii. The Respondents wholly or predominately provide disability services in the State of Victoria. iii. The Respondents employ predominantly women. iv. The Respondents needs to develop the skills, knowledge, and abilities of their employees to improve their performance, productivity and capabilities. v. The Respondents need to attract and retain a skilled and quality workforce to ensure their businesses remain viable. vi. In terms of the regulatory framework, in addition to the NDIS Framework detailed above, all of the Respondents’ employees are subject to the authority and regulatory powers of the Victorian Disability Workers Commission (VDWC).153 ASTERIA [143] ASTERIA submitted that direct competitors, competing against each other for market share would not ordinarily be considered to have ‘clearly identifiable common interests’. Rather, they would be considered to be in conflict with each other.154 ASTERIA considers the other Respondents to be competitors with it, as well as the various other employers in the region of Maryborough, Victoria and Australia who are not included in the Application.155 [144] ASTERIA accepted that it operates in a common regulatory system with the other Respondents and that it is funded via the NDIS and that the Commission may conclude that these are ‘common interests’ (indeed there is a ‘common interest’ for the funding through the NDIS to be increased and better support employers of disability support workers).156 [2025] FWCFB 131 33 [145] ASTERIA did not accept that there is a common interest in that the Respondents are each separately covered by nominally expired ‘zombie agreements’ that provide the same or substantially similar terms and conditions to employees. ASTERIA submitted that The ASTERIA Services Disability Services Victoria (Part 1) Collective Agreement 2008 does not cover or apply to any ASTERIA employee. Community Accessability [146] Community Accessability submitted that the ordinary meaning of the words ‘common interests’ do not allow for an interpretation relating only to a ‘common interest’ and that having only one common interest is unlikely to be a significant persuasive factor in favour of joint bargaining.157 [147] Community Accessability submitted that because of the breadth of factors that may be considered ‘common interests’, not all such ‘interests’ will have much or any bearing, in a particular case, on the ultimate question of whether joint bargaining is appropriate. For example, employers may be in the same geographic region and substantially funded by the Commonwealth but be in entirely different industries. In these circumstances, even if the employers have ‘common interests’, it would not have much or any bearing on whether joint bargaining is appropriate.158 [148] Community Accessability submitted, it is appropriate to consider, even if the Applicants’ purported ‘clearly identifiable common interests’ are made out, if this makes joint bargaining any more appropriate.159 [149] In relation to each Respondent being a provider of disability services wholly or predominantly in the State of Victoria, Community Accessability submitted that the breadth of services covered by ‘disability services’, and the variety of work hours, casual employment rates, work schedules and duties in this sector, does not significantly support the view that joint bargaining is appropriate.160 [150] In relation to geographical location, Community Accessability submitted that not all employers and employees are based in Victoria. For example, Community Accessability operates in Victoria and Southern New South Wales. Further, although ‘geographic location’ is an example of a common interest that employers ‘may have’, for a common interest to be established, there must be something about the geographical location that makes it of interest to all employers. The employer’s interests must be determined by reference to their objectives. For example, operating in certain rural areas may affect how services are provided and the need for travel as part of work. In the application, the wide geographic location of Victoria and Southern New South Wales, which covers a range of metropolitan and rural areas, is insufficient to demonstrate a common interest between employers. 161 [151] In relation to the Respondents’ need to: • develop the skills, knowledge, and abilities of their employees to improve their performance, productivity and capabilities, • attract and retain a skilled and quality workforce to ensure their businesses remain viable, [2025] FWCFB 131 34 Community Accessability submitted that these statements are of such generality that they cannot seriously create a clearly identifiable common interest. To be a clearly identifiable common interest, it must be ‘plainly discernible or recognisable’. This standard is not met with these statements, which each apply to the overwhelming majority of employers in Australia.162 [152] In relation to each Respondent being separately covered by nominally expired zombie agreements that provide the same or substantially similar terms and conditions to employees, Community Accessability submitted that the Respondents are subject to a variety of industrial instruments and employment agreements, for example: a. Three employers, Amicus, Menzies, and Mambourin, do not have employees covered by a zombie agreement; b. Other employers are covered by a variety of industrial instruments, with only some employees covered by zombie agreements. For example, Community Accessability only has 13 of around 260 employees covered by a zombie agreement, which applies as a result of a transfer of business. c. Mirridong pays employees in a way that meets the SCHADS Award and the zombie agreement minimum entitlements applicable to them.163 [153] In relation to each Respondent being substantially funded, directly or indirectly, by the Commonwealth in that they provide disability services under the NDIS, Community Accessability submitted that this makes joint bargaining less appropriate, because it supports the view that bargaining is unlikely to result in increased pay and conditions.164 Community Accessability also submitted that some employers receive funding from other sources. For example, Community Accessability receives a small grant from the Victorian government to provide services to vulnerable people ineligible for NDIS funding and funding from the Commonwealth Government for aged care services.165 George Gray [154] George Gray submitted that there are factors that make it distinct from some of the other Respondents in that it does not operate residential services, independent living or in-home support services that are generally provided in a 24/7 arrangement. In January 2024, George Gray Centre commenced respite care services.166 Life Skills [155] Life Skills submitted that there are factors that make it distinct from all of the other Respondents. Life Skills is not solely a disability service but rather a community service organisation, providing a broad range of programs, events, activities and education and training pathways to all members of the community. Life Skills’ disability service is an increasingly small component of its overall business. Further, the long-term vision of Life Skills is to phase out the segregated disability service (or day service) and to support all people to participate in their communities through its Community Hub, Education and Training Services.167 As Life Skills Victoria moves to this new service model, there will be less reliance on disability support workers and greater employment of community development workers.168 [2025] FWCFB 131 35 Windarring [156] Windarring submitted that apart from the application of zombie agreements, the common interests relied upon by the Applicants are common interests that apply to thousands of disability support providers who are based in and employ disability support workers in Victoria, and are not specific to the Respondents. Windarring submitted that the different interests between Respondents are potentially far more significant than the common interests identified by the Applicants which may make it difficult for supported bargaining to achieve the objectives of flexibility and meeting business needs.169 [157] Windarring submitted that the Applicants have failed to identify more nuanced common interests that can genuinely be expected to promote cooperation and agreement on a group of 14 employers on terms and conditions that provide enough flexibility to meet their individual needs. If commonalities are too general, practical difficulties may arise when interests diverge due to distinguishing factors such as different service offerings, different workforce compositions, different structures, different operational requirements and different revenue sources. This can complicate negotiations and undermine the purpose of the FW Act more broadly and the supported bargaining stream more specifically by resulting in a one size fits all approach that provides inadequate flexibility to businesses with distinct needs and circumstances.170 [158] Windarring submitted that its service offerings, dire financial position, service area and staff limitations are examples of features which distinguish it from many other not for profit disability service providers in Victoria and which directly shape its needs and interests.171 Windarring does not have the financial resources or funding capabilities to increase the pay and other entitlements of its employees. While it may be that the other Respondents have these financial capabilities, it would be unfair and detrimental to Windarring if it were forced to match the pay rates and entitlements of the other Respondents without at least a commensurate increase in NDIS pricing limits and more flexible NDIS pricing limits.172 Mambourin [159] In relation to the Applicants’ submission that the Respondents share a common geographical location, being that they all operate in the State of Victoria, Mambourin submitted that while its location may indicate that it has a common interest with other metropolitan Respondents, Respondents who operate solely in the regions face different circumstances and pressures and as such the geographical locations of the Respondents as a whole do not indicate a common interest.173 [160] In relation to the Applicants’ and the ACTU’s submission that all of the Respondents operate registered NDIS disability services businesses and employ staff to perform disability support work in those services, Mambourin submitted that there are differences between the enterprises with respect to the services they provide. For example, Mambourin provides supported employment services, accounting for around 25% of its total staff, Mambourin is not a provider of supported accommodation or independent living supports, and Mambourin does not provide aged care services.174 There appears to be significant disparity in the size of the organisations covered by the application. Mambourin has a relatively high proportion of [2025] FWCFB 131 36 participants with complex care needs or behaviours of concern, which is another point of difference, giving rise to differences in services and business models.175 [161] In relation to the submissions by HACSU, Mambourin agreed that the limitation on bargaining imposed by the NDIS is a common interest. It is correct that the Respondents provide disability services in Victoria, although there is some disparity in the overall makeup of the businesses. Mambourin employs more women than men, however it is certainly not an overwhelming majority. With regard to the fact that workers are covered by the Victorian Disability Workers Commission, while this is a point in common, it could hardly be considered to be a relevant common interest, as it has little apparent application (if any) to the terms and conditions of employment.176 [162] Mambourin submitted that its employees are not covered by a zombie agreement and as such, the terms and conditions of employment applying to the Respondents are quite different from those applying to Mambourin’s staff. This factor does not indicate the presence of a common interest.177 [163] Mambourin submitted that all of its government funding comes through the NDIS, and this accounted for 89% of its operating revenue this financial year. Last financial year NDIS funding made up 86.1% of Mambourin’s operating revenue. Unlike those Respondents who provide aged care, supported accommodation, independent living, and other services which are funded outside the NDIS, none of Mambourin’s funding comes from the State Government or other Commonwealth Government Departments.178 [164] Mambourin recognised that it has some common interests with the other Respondents, largely stemming from the fact that they all participate in the same sector and they are all registered NDIS providers. However, Mambourin submitted given the many differences between it and the other Respondents, in terms of: (a) range of services provided; (b) make up of participants; (c) current terms and conditions of employment; (d) size and financial position; (e) sources of funding; and (f) number and location of workplaces, the extent of the common interests does not indicate that it is appropriate that Mambourin should bargain together with the other Respondents.179 McCallum [165] McCallum submitted that the Applicants have failed to demonstrate that there is genuine commonality between the Respondents.180 [166] McCallum submitted that it is likely that the extent of commonality might extend to the following: [2025] FWCFB 131 37 a. All Respondents operate businesses to one degree or another in the disability sector in Victoria; b. All Respondents appear to be registered NDIS providers; c. Most Respondents will be subject to the same NDIS rules, regulations and expectations.181 [167] McCallum submitted that given the requirement of satisfaction and clarity in terms of making a finding of common interests, there must be a deep analysis of any purported common interest, because even where a common interest may on its face appear, for example a common interest to provide services to persons with disability, there are many facets to that interest which will impact Respondents quite differently and which remove the clarity of interest required under the terms of the FW Act.182 [168] McCallum submitted that the disability sector is large, diverse, market competitive and regulated. It is not appropriate to simply find commonality between providers by reference to work in the sector or requirement to comply with regulation in an industry sector that is necessarily and highly regulated through the Commonwealth. The way each operator navigates through the regulation and operates its business is the more relevant factor.183 [169] McCallum submitted that in relation to geography, the fact that the majority of Respondents operate in Victoria is not the appropriate consideration. The services are provided by operators for the benefit of persons who live within a reasonable distance from where the business operates. McCallum provides services to persons in Ballarat and close surrounds and St Arnaud and close surrounds. The geography in this instance goes against a finding of common interests because those who operate in less rural areas or closer to larger cities will have different geographical constraints to those in more a remote location.184 [170] McCallum submitted that there is no clear guidance in terms of what being ‘substantially funded’ directly or indirectly, by the Commonwealth, a State or a Territory means and that in the case of the NDIS it cannot be said that any provider is substantially funded solely by the Commonwealth or State Government. This is because funding is allocated to a participant who then accesses services rather than to the service provider.185 Findings [171] In Application by UWU, AEU and IEU, the Full Bench stated: …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.186 . [172] We agree with the Full Bench in Application by UWU, AEU and IEU that the expression ‘common interests’ used in s.243(1)(b)(ii) extends to any joint, shared, related or like characteristics, qualities, undertakings or concerns as between the relevant employers. We also agree that the references to geographical location and being substantially [2025] FWCFB 131 38 funded, directly or indirectly, by the Commonwealth, a State or a Territory as examples of common interests in s.243(2) indicate that that a broader range of circumstances may be taken into account in assessing commonality of interests than simply the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises. [173] We accept the submissions of the Applicants that the Commission’s consideration of whether the employers have clearly identifiable common interests does not involve weighing points of commonality and points of difference but simply asking whether there are clearly identifiable common interests. [174] We do not accept the submissions of Windarring that at this stage of the inquiry, the Applicants are required to identify nuanced common interests that can genuinely be expected to promote cooperation and agreement. We also do not accept the submission by McCallum that there must be a deep analysis of any purported common interest. Such narrow readings of the meaning of ‘common interest’ are not available when the phrase is construed in accordance with his ordinary meaning and having regard to the objects of the FW Act in ss.3, 171 and 241. [175] Some of the Respondents have conceded that they have some common interests with the other Respondents. For example, ASTERIA accepted that it operates in a common regulatory system with the other Respondents, that it is funded via the NDIS and there is a common interest for the funding through the NDIS to be increased and to better support employers of disability support workers. Mambourin recognised that it has some common interests with the other Respondents, largely stemming from the fact that they all participate in the same sector and they are all registered NDIS providers. McCallum submitted that it is likely that the extent of commonality might extend to all of the Respondents operating businesses to one degree or another in the disability sector in Victoria, being registered NDIS providers and being subject to the same NDIS rules, regulations and expectations. Geographical Location [176] In relation to geographical location, we accept that in some circumstances, the location of employers in a specific state or territory of Australia may be regarded as a common interest. For example, in Independent Education Union of Australia & The United Workers' Union v Aberdare Pre School Inc and Others,187 the Employers were found to have clearly identifiable common interests for numerous reasons including that they all operated in New South Wales and were entirely or substantially funded by the NSW Government.188 [177] In ASU v ACTCOSS,189each of the employers was based in the Canberra and ACT area. The services provided by the employers were localised and focused on the Canberra and ACT region and community. They also largely drew upon the same pool of potential employees. The employers were not large and did not operate across multiple jurisdictions. As not-for-profit organisations the employers drew on volunteer networks in the Canberra and ACT community for governance and service provision. Many of the employers operated as ACT specific peak and advocacy organisations.190 [178] In HSU and AEU,191 each of the employers operated a business, or part of a business, in the disability services sector in Victoria. Commissioner Lee observed that although there were [2025] FWCFB 131 39 variations in the locality of each of the employers, (regional and metropolitan), the significance of the state geographical indicia being a clearly identifiable common interest was that all the employers operated in a state which historically had state funding in the disability sector, and regulators being the Victorian Disability Worker Commission and the Disability Workers Registration Board of Victoria.192 [179] The Respondents in the matter before us all operate a business, or part of a business, in the disability sector in Victoria, historically had funding from the Victorian Government in the disability sector and are regulated in part by the Victorian Disability Worker Commission and the Disability Workers Registration Board of Victoria. For these reasons, we find that the Respondents have common interests because of their geographical location. The nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises [180] The evidence establishes that all of the Respondents operate disability services and that the employees performing work in those services are paid pursuant to the ERO. The terms and conditions are provided by either the SCHADS Award or a zombie agreement. When the zombie agreements terminate, the terms and conditions of the employees will be provided by the SCHADS Award unless a replacement enterprise agreement is made. We find that the Respondents have common interests because they are all operating disability services and pay employees performing work in those services in accordance with the ERO. Being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory [181] The evidence establishes that all of the Respondents provide services to persons with disability who pay for such services with individualised funding provided by the Commonwealth Government pursuant to the NDIS. We find that the Respondents have common interests because they are all substantially funded, directly or indirectly, by the Commonwealth. Conclusion [182] Based on the evidence before us, we are satisfied that the Respondents have clearly identifiable common interests and that this is established with respect to the evidence about the Respondents sharing common funding arrangements and regulatory environments, delivering disability services in Victoria and providing similar employment conditions. These findings weigh in favour of granting 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) Submissions AEU [183] The AEU submitted that the fact that there are a number of bargaining representatives would not, necessarily lead to a conclusion that the bargaining process would not be [2025] FWCFB 131 40 manageable. The Commission would need to consider the number of bargaining representatives in the context of the particular bargaining, industry and parties concerned. It may be, for example, that the history in a particular industry or sector demonstrates that bargaining involving a large number of bargaining representatives has been successful or that it is likely most or all bargaining representatives are likely to adopt similar positions in bargaining.193 [184] The AEU submitted that the relevance of the likely number of bargaining representatives must also be considered in light of the surrounding provisions. In particular, the number of bargaining representatives may provide a basis for the Commission including some, but not all, employers in an authorisation. Further, an assessment as to whether the number of bargaining representatives would be consistent with a manageable bargaining process would need to consider the fact that individual employers are able to subsequently apply to be removed from the authorisation.194 HACSU [185] HACSU submitted that there is evidence of multi-enterprise bargaining with a similar number of employers being manageable, workable and tractable in the disability sector. The 2023 VDSEA covers 23 employers who provide the same disability services as the Respondents. Throughout the history of bargaining for the VDSEA, there has generally been three major bargaining representatives (including the Applicants) with some additional bargaining representatives. However, the majority of employers have been represented by one major bargaining representative, with an ‘employer bargaining committee’ who also attend the bargaining. That bargaining process has been manageable, workable and tractable which is evidenced by the successful negotiation of a multi-enterprise agreement covering 23 employers in the disability sector.195 [186] HACSU submitted that it is probable that the bargaining process for the proposed agreement will proceed in a similar manner to the VDSEA and that therefore the likely number of bargaining representatives would be consistent with a manageable collective bargaining process.196 ACTU [187] The ACTU submitted that it is not the case that the likely existence of a certain number of bargaining representatives will weigh against the making of an authorisation. Rather, it must be the case that the number of bargaining representatives would affect the manageability of the bargaining process itself.197 [188] The ACTU submitted that the deliberate use of the term ‘manageable’ suggests that regard must be had not to whether the likely number of bargaining representatives would yield a process that is less than ideal or even not as efficient as it might be with a different number of bargaining representatives, but rather whether the quantum of bargaining representatives would be such that the process becomes actually unworkable. This is a high bar.198 AI Group [2025] FWCFB 131 41 [189] AI Group submitted that in circumstances where an authorisation is sought in relation to a narrow cohort of parties and there is a small number of representatives, this matter is not likely to weigh against the granting of an authorisation. If an authorisation could cover a wider range of parties with a greater number of representatives, the significance of this issue will be much greater.199 ASTERIA [190] ASTERIA submitted that if the authorisation is granted, it is likely that bargaining will proceed on the basis that the interests, needs and responses of each of the Respondents will need to be heard separately at bargaining meetings. ASTERIA submitted that such a process is unlikely to proceed in a manageable way and is very likely to be inefficient and unreasonably resource intensive for all parties.200 [191] ASTERIA submitted that the HACSU Submissions concerning the VDSEA should be given no weight as this agreement was not the product of a supported bargaining authorisation. It was consensually entered into by all employers, and involved a single appointed bargaining representative, representing each of the 23 employers covered by that agreement.201 [192] ASTERIA submitted that bargaining will not be manageable as it will result in a considerable expenditure of resources for the Respondents. ASTERIA is not resourced to manage such processes.202 Community Accessability [193] Community Accessability submitted that most, if not all, of the Employers appear to have their own bargaining representatives which would be inconsistent with a manageable collective bargaining process. Further, there are very low levels of union engagement amongst the employees of Community Accessability, such that employees may wish to appoint non- union bargaining representatives.203 Windarring [194] Windarring submitted that a bargaining process involving 14 different employers would not be simple, even if an employer bargaining committee was appointed as suggested by the Applicants. Further, the operational differences between the Respondents means any negotiated agreement would either need to be very general to accommodate diversity or very detailed to cover specific operational nuances. This may result in an overall broad agreement which is not effective or an overly complex agreement.204 Mambourin [195] Mambourin accepted that if the number of bargaining representatives is relatively small, that would tend to indicate that the collective bargaining process will be manageable. However, the implication from Application by UWU, AEU and IEU is that the reverse also applies. Where there are a large number of bargaining representatives, this would tend to be inconsistent with a manageable collective bargaining process.205 [2025] FWCFB 131 42 [196] At this stage, Mambourin intends to be separately represented in any bargaining process. If the other Respondents intend to be represented separately, this factor will weigh against the granting of the authorisation. This is particularly the case as the differences between the Respondents are likely to result in different bargaining positions. Another aspect of this matter to be considered is the question of employee representation. Mambourin submitted that given the relatively low level of union membership at Mambourin at least, the Applicants’ assumption that they will be the major bargaining representatives is open to question.206 [197] Mambourin acknowledged that the question of whether the collective bargaining process will be successful is not a significantly relevant consideration. However, if none or very few of the Respondents are willing participants in the process, that would seem inconsistent with the Applicants’ expectations that the bargaining process will be manageable, workable or tractable.207 [198] Mambourin disputed the submission that the availability of s.244(1) of the Act is a relevant consideration for the Commission when considering whether the bargaining process will be manageable. The AEU suggested that an employer can simply apply to be removed from the authorisation, however Mambourin submitted that s.244(2) of the FW Act makes it clear that the Commission needs to be satisfied of a change in the employer’s circumstances before it can remove the employer’s name from the authorisation.208 McCallum [199] McCallum submitted that the number of likely bargaining representative will make the process unmanageable. If McCallum is required to be part of a broader bargaining process, then it will bargain on the basis of terms which it believes will suit its goals, and its business strategies which are likely to be quite different to other Respondents.209 [200] McCallum submitted that with the likely number of bargaining representatives who are each starting from a place of objection to being roped in to the multi-enterprise bargaining stream and who will each be pressing for their own particular needs to be addressed, the bargaining itself is likely to be unmanageable, even with the involvement of the Commission.210 Findings [201] Section 243(1)(b)(iii) is concerned with whether the likely number of bargaining representatives is consistent with a ‘manageable’, that is, workable or tractable, collective bargaining process. This requires an assessment to be made which is to some extent speculative or predictive, since the choice of bargaining representative by the relevant employers and employees may not be known at the time an application for an authorisation is considered. Weight must be given to the scope of the capacity of employees and employers to choose, and change, their bargaining representatives under s.176 of the FW Act. However, the consideration required is what is ‘likely’, that is, probable to happen, not what may possibly happen. Any past history of bargaining, representation at the hearing of the authorisation application, and any sameness or diversity of views amongst employees and employers concerning the prospect of multi-enterprise bargaining may all inform the assessment to be made. The prospect of an agreement being reached if an authorisation is made is not a significant relevant consideration since s.243(1)(b)(iii) is concerned with the collective bargaining process, not the outcome.211 [2025] FWCFB 131 43 [202] Although a number of the Respondents were jointly represented in these proceedings, there is no evidence before us which establishes that any of the Respondents will choose to be jointly represented in bargaining. In these circumstances, it is possible that each of the 14 Respondents will be separately represented in bargaining and that there may also be a number of individual employee bargaining representatives in addition to the AEU and HACSU. The number of Respondents is not large, particularly when compared to the number of bargaining representatives which can be involved in bargaining for single-enterprise agreements.212 [203] Most of the Respondents contend that the process will not be manageable because they have a diversity of views and interests. [204] There is no recent history of bargaining, apart from with Mambourin, however all of the Respondents have engaged in bargaining with their employees represented by one or both of the Applicants in the past. It appears to be the intention of the Applicants to bargain for an agreement which preserves the conditions of the zombie agreements which are more generous than the SCHADS Award. The employees who will be covered by the Proposed Agreement are currently covered by either the SCHADS Award or by zombie agreements which have some enhanced leave entitlements. Some Respondents whose employees are not covered by zombie agreements provide their employees with above award entitlements such as higher leave entitlements and a higher sleepover allowance. The types of conditions which apply to the Respondents and their employees, such as pay rates, leave, penalty rates and allowances are similar, however the value of each of these conditions varies depending upon whether employees are covered by the SCHADS Award, a zombie agreement, or over award conditions. [205] Given that only one underpinning award applies to the employees who will be covered by the Proposed Agreement and that the type of conditions which currently cover them are similar, we do not believe that the bargaining will be legally or industrially complex although it may take time to work through all of the parties’ respective claims. [206] At least some of the employees will be represented by HACSU and the AEU who the evidence establishes have a long history of bargaining in the disability sector. It is possible that employees could nominate additional bargaining representatives but there is no evidence that if this occurs, it will lead to a collective bargaining process which is not manageable. [207] Taking all of these matters into account, we are satisfied that the likely number of bargaining representatives for the Proposed Agreement will be consistent with a manageable collective bargaining process. These findings weigh in favour of granting the authorisation sought. Any other matters the Commission considers appropriate: s.243(1)(b)(iv) [208] Section 243(1)(b)(iv) gives the Commission a broad discretionary scope as to the relevance and weight of other matters to be taken into account. The applicable objects of the FW Act in ss. 3, 171 and 241 will guide the Commission in identifying those matters which may appropriately be taken into account, as will the circumstances of the particular case.213 Submissions [2025] FWCFB 131 44 ACTU Low rates of bargaining [209] The ACTU submitted that there are low rates of bargaining within the relevant industry or sub-industry. Award reliance in the health care and social assistance industry has risen sharply from 19% in 2012 to 31.7% in 2018, such that it is now one of the industries with the highest rates of award coverage. The ACTU submitted that while low rates of bargaining are not a necessary precondition of making an authorisation, low rates of bargaining will weigh in favour of making an authorisation.214 Attitude of employers [210] The ACTU acknowledged at the presence of consent between the parties to the authorisation will weigh in favour of making a supported bargaining authorisation, but submitted that the absence of such consent should not weigh against the making of an authorisation. The ACTU submitted that the supported bargaining scheme is ultimately a scheme of compulsion as it exists where other avenues, such as single-enterprise bargaining and co-operative bargaining are unavailable, ineffective, or simply less desirable than supported bargaining. The very architecture of the scheme, in which authorisation must be sought and then various rights, obligations and powers follow, is one which presupposes that there will rarely be agreement to bargain in this manner (and where there is, it is a bonus). To expect consent from all parties for the authorisation would be to defeat the very nature of the scheme.215 HACSU Promotion of job security [211] HACSU submitted that granting the authorisation sought by the Applicants provides opportunity for the parties to negotiate and agree on terms and conditions that promote permanent and secure forms of employment for disability support workers within the sector.216 Promotion of gender equality [212] HACSU submitted that the promotion of gender equality is of particular relevance to the application given the highly feminised nature of the disability workforce and the associated gender based undervaluation of disability support work. It would be appropriate to grant the authorisation sought by the Applicants as this would open the prospect of improving rates of pay for a female-dominated workforce, consistent with the object of the FW Act.217 Access to the additional powers available within the supported bargaining scheme [213] HACSU submitted that the supported bargaining scheme is designed to provide the Commission with additional powers to assist parties to overcome impediments to bargaining. For example, the Commission may direct a person who is not an employer specified in the authorisation to attend a conference at a specified time and place, if the Commission is satisfied that the person exercises such a degree of control over the terms and conditions of the [2025] FWCFB 131 45 employees who will be covered by the agreement that the participation of the person in bargaining is necessary for the agreement to be made. HACSU submitted that this form of assistance is likely to be of particular utility in the disability sector. For example, it may be appropriate for the NDIA to be directed to participate in bargaining discussions for the Proposed Agreement given its control over funding and pricing arrangements within the NDIS. HACSU submitted that the grant of the authorisation sought will for this reason be appropriate, having regard especially to the statutory object in s.241 of the FW Act.218 AI Group [214] AI Group submitted that the scope of the parties who will be covered by a proposed authorisation is a relevant consideration when determining whether the authorisation should be made. It is conceivable that decisions about the scope or coverage of a proposed authorisation will be made pragmatically by parties, with a view to limiting the impact of potentially divergent views amongst bargaining representatives being advanced during bargaining. The scope of a proposed authorisation could give rise to a raft of relevant discretionary considerations, depending on the circumstances of a particular matter which could include: (a) Any foreseeable potential impact of bargaining between the relevant parties on the economy, specific sectors and/or members of the community that rely upon services of the employers that will be covered by the proposed authorisation; and (b) The impact on other employers that might be said to have a common interest with those covered by the proposed authorisation but who have been selectively excluded from the scope of any application. This should include a consideration of the possibility that such employers may subsequently be roped into the coverage of the authorisation or any agreement ultimately made.219 [215] AI Group submitted that to some extent, the matters that the Commission must take into account pursuant to s.243(2)(b)(iv) will differ between applications for authorisations, depending on the matters in issue in each set of proceedings, the circumstances of the relevant employers and employees, the context in which the application has been brought, and the characteristics of the industry or sector in which the employers and employees are engaged.220 It will typically, if not always, be appropriate for the Commission to take the following matters into account: (a) The views of the employers who would be covered by the proposed agreement. This is a matter that should be given significant weight.221 (b) Any history of bargaining between the relevant employers and employees.222 (c) Any intention or efforts to make a single-enterprise agreement amongst the relevant employers and employees.223 [216] AI Group submitted that depending on the circumstances of a given matter, it may also be appropriate to take into account the following: (a) Where there is a third party ‘who exercises such a degree of control over the terms and conditions of the employees who will be covered by the agreement’ that their participation in bargaining is ‘necessary for the agreement to be made’, or there is some other third party who directly or indirectly funds the employers who would [2025] FWCFB 131 46 be covered by the agreement; the willingness, capacity and ability of that other party to provide the requisite support, assistance, funding etc, that would enable an improvement in the terms and conditions afforded by the employers to the employees. (b) Any potential implications for the customers, clients or other users of the employers’ products or services. (c) Any potential implications for other employers and employees who work in the same supply chain as those that are the subject of the application. (d) Whether the making of a multi-enterprise agreement may unfavourably distort the labour market, by delivering significantly enhanced conditions to certain cohorts of workers vis-à-vis others who, for example, work alongside the relevant employees and undertake work that is substantially similar in nature. (e) The size of each of the respondent employers.224 Amicus [217] In relation to ‘appropriateness’, Amicus submitted that it simply does not want to be part of a multi-enterprise agreement. It submitted that it does not have the funds and is not in a position to pay above award wages that will not necessarily do anything to improve the conditions or environment in which it operates.225 ASTERIA [218] ASTERIA submitted that it is limited in its financial/operational capacity to meet the challenges that a multi-enterprise negotiation following a supported bargaining authorisation would require. ASTERIA submitted that the NDIS pricing model is currently being reviewed, with the possibility of a wholesale redesign of the system, and that it is appropriate for these reviews and processes to be determined before ASTERIA is forced to bargain with the Applicants and the other Respondents for a multi-enterprise agreement.226 Incapacity to bargain [219] ASTERIA submitted that it and other employers in the sector, including the other Respondents, have an incapacity to bargain.227 It is for the Commission to assess whether it is appropriate for ASTERIA to bargain together with the other Respondents and the Applicants for a supported bargaining agreement, so that a power to have the Minister attend the Commission may be exercised. This would appear to be the only opportunity of any materiality as to whether ASTERIA and the other Respondents could offer anything above the SCHADS Award as part of a multi-enterprise agreement. Otherwise, the Commission should give significant weight to HACSU’s submission that there is an incapacity to bargain. ASTERIA submitted that the vehicle of a supported bargaining authorisation would be of no utility in addressing this reality.228 . The NDIS Report and current NDIS funding/pricing uncertainty [220] ASTERIA submitted that the Commission should give proper weight and consideration to the state of the NDIS and funding around disability services as they exist at this moment. There is a state of flux, with the publication of the ‘most comprehensive and accessible [2025] FWCFB 131 47 Commonwealth review in history’ on 7 December 2023 which included a raft of recommendations/supporting actions that will require appropriate time for the Australian Government to properly digest.229 [221] ASTERIA submitted that the Commission must accept the evidence that the funding for the service delivery for disability support work is fixed/capped and that ASTERIA does not have any capacity to supplement or increase the revenue that is generated from the services provided by its disability support workers. The Commission must also accept that the product of bargaining is to make an agreement that is approved by the Commission – that is even though the good faith bargaining requirements do not require concessions, there are various levers in the FW Act that will, eventually, result in an agreement being made. As an agreement must result in an employee being better off overall than the relevant modern award, it follows that any agreement will result in more cost to ASTERIA.230 [222] ASTERIA submitted that the granting of a supported bargaining authorisation may undermine job security by driving up the costs of labour in circumstances where its operations are otherwise fixed in terms of output, revenue and expenditure. There are no efficiencies, for example through workplace flexibility, that could be won by trading on the SCHADS Award conditions.231 Fairness [223] ASTERIA submitted that the Commission should take into account the fairness of the proposed coverage of the multi-enterprise agreement in terms of: (a) the coverage of only not-for-profit disability support providers; and (b) the extent to which it is fair for a small collection of employers to be forced into an unknown industrial process with the hope that the Minister may offer up more funding (which would need to be for the whole disability support industry across Australia – the prospects of which, given the complexity of the NDIS and current review processes is, in ASTERIA’s submission, very remote).232 Zombie agreements [224] ASTERIA submitted that it appears from the submissions filed by the Applicants, that a purpose of the Proposed Agreement will be to preserve the conditions that existed in the zombie agreements covering the Respondents. ASTERIA submitted that it is not funded to provide disability support workers with six weeks of annual leave, 21 days of personal/carer’s leave and shift penalties that are cumulative on weekend penalties. These are not entitlements that it currently provides, as it does not employ ‘instructors’ who fall within the scope of the ASTERIA zombie agreement.233 [225] ASTERIA submitted that the Commission must give appropriate weight to the significant impact, that a supported bargaining authorisation will have on ASTERIA’s viability.234 VDSEA [2025] FWCFB 131 48 [226] ASTERIA submitted that the Commission should consider the fact that the bargaining process that supported the VDSEA resulted in a multi-enterprise agreement that includes SCHADS Award rates of pay – that is, the process did not result in better rates of pay. The Commission should have some regard and give weight to the reality that all that could be achieved (at this time and noting that the NDIS pricing is the subject of a current review process) was a multi-enterprise agreement providing Award rates of pay. The time and resources expended by disability providers who are already under-funded through the NDIS for the work performed by their disability support workers is unjustifiable235 Community Accessability Variety of Respondents [227] Community Accessability submitted that the Respondents engage in different activities, have different work rosters, different rates of full-time, part-time and casual employees, and operate in different geographic regions. Accordingly, proposed clauses in any agreement may have vastly different effects on each of them. This will make joint bargaining unsuitable.236 The likely impact of known demands on the Respondents’ capacity to function [228] The Applicants have set out their intention to require the Respondents to agree to, by way of example, six weeks’ annual leave under any multi-enterprise agreement. Community Accessability submitted that the NDIS DSW Cost Model assumes the cost of a full-time employee’s entitlement to paid annual leave to be 20 days per year. Community Accessability submitted that if they provide an above award leave entitlement, the Respondents are likely to incur a negative margin and as such, this bargaining goal is not achievable. At present, Community Accessability is only able to maintain higher leave entitlements under the applicable zombie agreement due to the small proportion of employees entitled to this.237 Applicants have not demonstrated that enterprise-level bargaining not available [229] Community Accessability submitted that Ms Carter’s evidence is that HACSU is currently bargaining with at least 14 other employers for proposed enterprise agreements for employees performing disability support work in Victoria. HACSU has not made out why it cannot bargain with the Respondents individually.238 Gender equity [230] Community Accessability submitted that the argument that this supported bargaining authorisation will ‘open the prospect of improving rates of pay for a female-dominated workforce’ is unpersuasive, because it will not lead to higher rates of pay.239 Pressure on government [231] In relation to the Applicants’ suggestion that joint bargaining would be appropriate to deal with the issues presented by the NDIS DSW Cost Model which do not fund above award terms and conditions, Community Accessability submitted that it is inappropriate to require [2025] FWCFB 131 49 employers to engage in ineffective bargaining to pressure the Government to change its policy.240 Distinctive Options and Noweyung NDIS DSW Cost Model and National Disability Services Report [232] Distinctive Options and Noweyung submitted that with the limitations imposed by the NDIS DWS Cost Model and with more organisations running at a deficit, reaching agreement for a multi-enterprise agreement may be difficult.241 Willingness to bargain for a single-enterprise agreement [233] Distinctive Options and Noweyung have been covered by three enterprise agreements and for Noweyung a Memorandum of Understanding which provided higher rates of pay and conditions over and above the applicable award, from December 1999 to June 2012. Distinctive Options and Noweyung believe that the reason an enterprise agreement was not negotiated to replace the zombie agreement was the Applicants’ view that the zombie agreement overall provided better terms and conditions than the SCHADS Award. Further, the ERO also weighed against bargaining.242 [234] Distinctive Options and Noweyung submitted that they have been willing to bargain for a single-enterprise agreement as demonstrated by the current zombie agreements and their predecessors and that this remains their preferred option.243 Distinctive Options and Noweyung submitted that there has been no request by the AEU or HACSU for them to join the 2019 VDSEA or the 2023 VDSEA.244 George Gray [235] George Gray submitted that it has recently shown a willingness to bargain for a single- enterprise agreement. On 25 September 2023, George Gray sent an email to the AEU advising that the Board had been discussing bargaining for a replacement of the zombie agreement and confirmed their intention to proceed with a single-enterprise agreement.245 Following its email to the AEU, the CEO of George Gray, Mr Peter Green, met with staff representatives on 27 October 2023 and 20 November 2023 about the prospects of negotiating a single-enterprise agreement.246 Mr Green said that the AEU did not give an indication that they were prepared to commence bargaining and George Gray did not get to the stage of distributing a notice of employee representational rights.247 Mirridong [236] Mirridong now caters to the needs of aged adults as well as a few younger men and women who do not have the ability to be independent and require support to enjoy daily activities of their choice. It also provides residential services and manages a small, supported employment team.248 [237] Mirridong has not operated under its zombie agreement since February 2012. The zombie agreement did not cover all of its employees and since 2012 its business model has changed. Mirridong identified that the SCHADS Award was more beneficial to its [2025] FWCFB 131 50 employees.249 Employees retained six weeks annual leave with four weeks holiday loading for Day Services Support Workers and five weeks annual leave for Residential Support Workers. Employees accepted the change to ten days Personal Leave pro rata. Mirridong provides four training days per annum plus individual training and First Aid training. In November 2023 it wrote to employees advising they would keep their current conditions after the termination of the zombie agreement.250 [238] Mirridong submitted that any multi-enterprise agreement that is negotiated for the large organisations in the disability sector will likely not be appropriate or accommodate its small business model. Mirridong was founded on a diverse range of services around a collective of 26 participants. It is one hour away from any big services, making it a necessary requirement to perform work locally to ensure its future for the good of the participants while creating great working opportunities in a small town for employees to thrive and stay within the community. Windarring [239] In relation to the Applicants’ submissions, Windarring submitted that the highly feminised workforce is not a factor weighing in favour of making the authorisation because the Commission has already acted to ensure there is equal remuneration for men and women by issuing the ERO. There is no evidence that supported bargaining would be more effective at addressing gender pay gaps within the disability sector than the ERO. High rates of casualisation, an increased use of the gig economy workforce, and challenges in attracting and retaining staff are all underlying systemic issues within the disability sector and the Applicants have not established how these issues would be addressed through supported bargaining 251 The challenges and dynamics within the disability sector [240] Windarring submitted that the challenges and dynamics within the disability sector weigh against making the supported bargaining authorisation. Not for profit providers do not have the margins to be able to increase the pay and/or conditions whether they are bargaining at the single-enterprise level or multi enterprise level.252 A case for industry wide change [241] Windarring submitted that the Applicants’ submissions are more aligned with advocating for modification of the SCHADS Award as a means of increasing pay and other entitlements as increasing the entitlements under the SCHADS Award would increase NDIS price limits. The issues which the Applicants have highlighted are better suited for broader industry level changes rather than the limited scope of the authorisation sought. Windarring submitted that there is no basis whatsoever to believe that NDIS funding will increase in response to 14 employers in Victoria seeking to negotiate better pay and other entitlements for their employees.253 The public interest [242] Windarring submitted that making the authorisation would not be in the public interest due to the real risk of unintended consequences, including market fragmentation resulting from disparities in pay and conditions. Market fragmentation could lead to service disruptions and negatively impact the availability and quality of care for individuals with disabilities. Increased [2025] FWCFB 131 51 labour costs, which are not covered by the NDIS framework, may force disability services to cut costs elsewhere, which could lead to job losses or reduced employment opportunities, or disrupted continuity of care. Windarring fears that a supported bargaining authorisation will lead to an enterprise agreement which will force its closure.254 The purposes of the supported bargaining stream [243] Windarring submitted that the focus of supported bargaining is on addressing obstacles to bargaining and not to unsuccessful bargaining or an absence of bargaining. Windarring submitted that the barriers encountered by it and other not for profit disability support providers are not barriers to engaging in the bargaining process but are rather barriers to achieving better outcomes from the bargaining process than have already been achieved due to the constraints of the NDIS funding framework.255 Mambourin The level of support for the application [244] Mambourin submitted that in Application by UWU, AEU and IEU, the fact that all of the affected employers supported the application was a significant consideration weighing in favour of making the authorisation. In the current application, none of the Respondents support the making of the authorisation.256 It does not appear likely that multi-enterprise bargaining will increase wages in the sector, or improve gender equality [245] Mambourin submitted that the NDIA is aware of the connection between the NDIS funding model and wages in the sector. The NDIA takes SCHADS Award increases into account in its Annual Price Review and as part of the Annual Price Review process, proactively seeks input from service providers on matters relating to disability support worker terms and conditions, and the cost of providing services. Mambourin submitted that it is unlikely that participating in conferences before the Commission will substantially alter the information available to the NDIA, or its ultimate decision on service pricing.257 [246] Mambourin submitted that the NDIS DSW Cost Model specifically excludes enterprise agreements from the basis for determining the price. Mambourin submitted that on this basis it seems unlikely that the NDIA will be influenced to adjust its pricing or funding model by a supported bargaining process.258 [247] Mambourin submitted that the VDSEA negotiation process commenced at some point in 2017 but the first VDSEA did not commence operation until 2 March 2020. On this basis, it seems that any benefit to the employees arising from the granting of a supported bargaining authorisation is some years away. In any event, the evidence indicates that despite the commitment of the parties, and the assistance of the Commission, the VDSEA has not in fact increased pay rates in the sector which is unsurprising given the restriction imposed by the NDIS funding model.259 [2025] FWCFB 131 52 [248] Mambourin submitted that the low likelihood of any material wage increase in the foreseeable future under the proposed multi-enterprise bargaining process is a factor that weighs against the finding that it would be appropriate for the Commission to grant the authorisation. Further, Mambourin does not consider that there is a basis to expect that granting the authorisation is likely to promote gender equality by improving wage rates for a female- dominated workforce.260 The reintroduction or preservation of enhanced leave entitlements is not sustainable for the sector [249] Mambourin submitted that the clear implication from the AEU’s material is that it would be seeking to introduce entitlements of six weeks’ annual leave and three weeks’ personal leave into the Proposed Agreement. Mambourin submitted those leave entitlements, which had previously existed in zombie agreements such as the Mambourin Agreement, increase the cost to employers without in any way increasing the wages of employees or improving productivity. Mambourin submitted the leave entitlements had a significant negative impact on the sustainability of providers after the commencement of the NDIS because they exceed the amounts of leave which are incorporated into the NDIS DSW Cost Model.261 [250] Mambourin submitted that in the context of the majority of disability providers operating at a deficit, preserving additional leave entitlements from the zombie agreements, or reintroducing these entitlements to employers such as Mambourin, will have a significant impact on the sustainability of the sector, which would run contrary to the public interest, as it will have a negative impact on choice and control for NDIS participants.262 Mambourin is willing to bargain with its employees, and has the management capacity to do so [251] Mambourin submitted that there were negotiations between Mambourin and the AEU between 2020 and February 2023 with a view to entering into a new single-enterprise agreement. Bargaining was well progressed in early 2023 but halted when management changes resulted in a transitional period without a permanent Chief Executive Officer (CEO). On 11 September 2023, Ms Danielle Carey-Munro commenced in the role of CEO at Mambourin and decided to reinvigorate the enterprise agreement process.263 [252] Mambourin submitted that it became aware of the supported bargaining authorisation application for the first time when it received the application in this matter on 9 November 2023, as it had not received a communication from either the AEU or HACSU. Mambourin decided to put its proposed single-enterprise agreement to a vote, however employees voted against it.264 [253] Mambourin submitted that while Mambourin and the AEU do not have a recent history of successful bargaining, it is not ineffective bargaining, and subject to the position of the AEU and the employees, and of course subject to the operation of section 172(7) of the Act, it may yet result in a single-enterprise agreement. Given that there has already been progress towards drafting the single-enterprise agreement, and some progress in negotiations, if Mambourin is able to proceed with single-enterprise bargaining, any single-enterprise agreement would be likely to commence operation long before the multi-enterprise agreement could. This means [2025] FWCFB 131 53 that for Mambourin’s employees, the making of the authorisation is likely to leave them worse off for the foreseeable future, in that they will remain on the SCHADS Award while the multi- enterprise agreement is drafted and negotiated, when they could instead be receiving the benefits of a single-enterprise agreement throughout that period. As such, these factors should weigh against the making of the authorisation.265 The objects of the Division [254] Mambourin referred to the objects of the Division and submitted that the bargaining history between Mambourin and the AEU does not evidence constraints relating to a lack of necessary skills, resources, bargaining strength or previous bargaining experience, or ‘difficulty’ in bargaining. Rather, Mambourin (with the assistance of legal representation) and the employees (represented by the AEU), reached a point where they could not reach agreement on a term which, for the majority of employees, was a basis for rejecting the proposed single- enterprise agreement. Both parties had access to significant bargaining skills and experience. As such, Mambourin submitted that the granting of an authorisation will not achieve the object in section 241(b) of the Act.266 [255] Further, Mambourin submitted that the granting of an authorisation is unlikely to result in an agreement ‘that meets the needs’ of the parties. Mambourin submitted that a multi- enterprise agreement of the sort proposed by the Applicants will not meet the needs of the employees in terms of increasing wages, either at all or in the foreseeable future. There is also no evidence before the Commission as to how the proposed supported bargaining authorisation will assist Mambourin or any of the Respondents to meet their needs.267 Potential conflict with the VDSEA [256] Mambourin submitted that given the Applicants’ stated intention to continue bargaining with the VDSEA employers, if the present application ultimately results in the making of a multiple-enterprise agreement, the result will be that there are two parallel multi-enterprise agreements applying to different and arbitrarily selected groups of not-for-profit disability service providers in Victoria, presumably with differences in terms and conditions. Such an outcome would appear to be contrary to the public interest. Mambourin submitted that this tends to support a finding that it would not be appropriate to make the authorisation.268 McCallum [257] McCallum submitted that the question of appropriateness confers discretion on the Commission to decline to approve a supported bargaining application on grounds of appropriateness even if the provisions of s.243(1)(b)(i)-(iii) are found to have relevance, and solely on the grounds of s.243(1)(b)(iv).269 [258] McCallum submitted that it is capable of negotiating and agreeing terms of an enterprise agreement if it chooses to take that course as a means of regulating its employment terms and conditions, but it does not want to take that course at the present time. It does not require any assistance or support as envisaged at s.241(1)(a) or (c).270 [2025] FWCFB 131 54 [259] McCallum submitted that the single factor of being subject to funding constraints by reason of application of the NDIS DSW Cost Model is not a constraint on the ability to bargain, it is merely a constraint on the extent of the wage rates that might be achievable. A supported bargaining authorisation will not change or impact that particular element of constraint and there are no other constraints identified by the Applicants that would otherwise justify a authorisation being made.271 [260] McCallum submitted that the ACTU, AEU and HACSU, have effectively proposed that when interpreting the FW Act, it is appropriate for a supported bargaining authorisation to be made only by reference to the considerations at s.243 but they have all failed to adduce any evidence which identifies the basis on which it could be found that the making of such an authorisation would achieve the objects of the FW Act.272 [261] McCallum submitted that the question of appropriateness and assessment of the objects of the FW Act are critical considerations, and it is for the Applicants to demonstrate that having regard to the objects of the FW Act it is appropriate for the particular cohort of employers to be grouped together for the purposes of bargaining.273 [262] McCallum submitted that the supported bargaining stream should not be used as an alternative to individual bargaining. Where an employer has demonstrated that it has the capacity to bargain at an individual level without need for support and where there has been no approach prior to the supported bargaining application to seek to do so by the applicant, there should be a presumption that supported bargaining is not an appropriate route to follow at that time in respect of that employer unless there is some evidence presented which identifies in a particular respect: • that there is a common goal that even a competent employer may require assistance to achieve in negotiations; and • that goal is generally desirable to achieve the objects of the FW Act.274 [263] McCallum submitted that the Applicants have not identified or presented any evidence to demonstrate that any greater benefit will be achieved by a multi-enterprise agreement as compared to single agreement baragining or any basis on which the particular grouping of the Respondents would be consistent with the objects of the FW Act or with the broader intentions which have been variously noted in submissions, but which include promoting job security and gender equality.275 Evidence that multi-employer bargaining has not improved the position of employees in the Sector [264] McCallum submitted that the NDIS pricing and funding was not changed as a result of the VDSEA process and the approaches made by parties negotiating that agreement to the Victorian Government for funding increases were unsuccessful. McCallum submitted that the VDSEA itself has perpetuated a dual employment stream where one group of employees receive lesser benefit by way of annual leave than others who do the same work and that this is not fair.276 What might lead to better wages and conditions? [2025] FWCFB 131 55 [265] McCallum submitted that most of its employees will immediately see an improvement in take home pay when the zombie agreements sunset, and the only way to then further improve wages and conditions is for there to be a fundamental change to the NDIS funding model and a change to the SCHADS Award as it relates to the disability sector. McCallum submitted that it is inherently unlikely that any supported bargaining process involving a disparate group of Victorian employers will result in any meaningful change for the better to the NDIS funding model or process.277 Gender equality [266] McCallum submitted that there is no evidence before the Commission that reasonably leads to a conclusion that making the authorisation will have any positive impact on gender equality.278 History of unwillingness to bargain [267] McCallum noted HACSU’s submissions that, ‘There has been a history of the Respondents named in this Application being unwilling to bargain with the Applicants.’ McCallum submitted that an unwillingness to bargain by a particular employer is not a relevant consideration when it comes to the supported bargaining application. In the case of McCallum, the evidence of Ms Baker is that the last approach by HACSU in relation to bargaining was in 2017 and since that time HACSU have made no attempt to engage in a bargaining process with McCallum individually, despite having done so with others.279 Ms Baker has no record of the AEU making any approach to replace the zombie agreement applicable to their members at any time despite the AEU evidencing that they have been able to do so with other employers.280 Why an enterprise agreement is not the preferred option at this time [268] McCallum submitted that in 2017 when HACSU enquired about bargaining, McCallum had just joined the NDIS and McCallum wanted to have time to work through and understand all of the impacts, benefits and implications of the NDIS on its services and business before agreeing to any particular employment terms under an enterprise agreement. It is likely there will soon be some significant changes to at least the funding model through the introduction of an Independent Pricing Model, which will be a significant departure from the way pricing is currently set.281 Why supported bargaining is not appropriate [269] McCallum submitted that it has recently undergone an extensive six month process of consultation with staff relating to the planned transition away from zombie agreements and in that process, it identified particular benefits it can offer to staff upon transition to the SCHADS Award, but which are unique to its organisation. These are not benefits that would translate through to a multi-enterprise agreement as they are too bespoke. They would also not be matters that would be considered in a multi-enterprise agreement as being considerations in terms of the Better Off Overall Test, because they would not be part of the agreement process unless all of the Respondents agreed to them. For McCallum, the supported bargaining process would [2025] FWCFB 131 56 detract from the terms it could offer all of its employees and on that basis alone it could not be said then to promote the objects of the FW Act. 282 Findings [270] The Respondents have raised a significant number of matters which they submitted weigh against a finding that it is appropriate that they and their employees bargain together including: • The NDIS pricing model is currently being reviewed, with the possibility of a wholesale redesign of the system, and that it is appropriate for these reviews and processes to be determined before bargaining takes place. • The funding for the service delivery for disability support work is fixed and that some Respondents do not have any capacity to supplement or increase the revenue that is generated from the services provided by their disability support workers. The proposed supported bargaining authorisation will not increase rates of pay. • The VDSEA did not result in better rates of pay. • The Applicants have not established why they cannot bargain with the Respondents individually. • Making the authorisation would not be in the public interest due to the real risk of unintended consequences, including market fragmentation resulting from disparities in pay and conditions. • The issues which the Applicants have highlighted are better suited for broader industry level changes rather than the limited scope of the authorisation sought. • Leave entitlements in zombie agreements increase the cost to employers without in any way increasing the wages of employees or improving productivity. [271] The Respondents have also raised matters in their submissions about common interests which are relevant to ‘any other matters the FWC considers appropriate’. These matters include the factors that distinguish each of the Respondents from other services including size, participants, financial position, types of services, workforce composition, operational requirements and revenue sources. Attitude of employers [272] In the previous decisions which have determined applications under s.242 of the FW Act, all of the respondent employers have supported the application which is not the case here. This is a matter which may weigh against the granting of the authorisation, depending upon the reasons that each of the Respondents opposes the application and whether an objective analysis of these reasons, having regard to the objects of the FW Act in ss.3, 171 and 241, and the criteria in s.243(1)(b,) leads to a conclusion that it is not appropriate for the Respondents, or some of them, to bargain together. The Respondents have a range of reasons for opposing the application, but the major issue is the NDIS pricing and scepticism about whether the supported bargaining process will result in rates of pay increasing. We deal with these issues below. [273] In our view, one of the most significant considerations that may arise if an employer opposes a supported bargaining authorisation relates to the prohibition upon that employer engaging in bargaining for any type of agreement other than a supported bargaining agreement [2025] FWCFB 131 57 under s.172(7)(b) once an authorisation is in operation.283 However, this is unlikely to be an issue for the majority of the Respondents, apart from Mambourin, as they have either expressed an unwillingness to bargain or have taken no steps to initiate bargaining. [274] Some Respondents have also raised concerns about the resources involved in participating in bargaining and the possibility of feeling pressured to accept conditions during bargaining for a multi-enterprise agreement which do not meet their needs. Compliance with the FW Act is a requirement of all national system employers which will inevitably involve the investment of resources, including in relation to bargaining where this occurs. Further it is possible the assistance available to the parties from the Commission may result in bargaining for a multi-enterprise agreement proceeding more efficiently than for a single-enterprise agreement. As to the concern about employers feeling pressured to accept conditions, there is no requirement that employers agree to any claim. Further, a multi-enterprise agreement is not made until each employer asks its employees to approve the agreement by voting for it and a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement. If the terms of a multi-enterprise agreement are not acceptable to an individual employer, that employer is not required to ask its employees to vote for it. In these circumstances, we believe that it is unlikely that an employer covered by a supported bargaining authorisation would find themselves agreeing to conditions that were not acceptable to them. Review of the NDIS pricing model [275] At the time of the hearing, almost a year had passed since the release of the final report of the Independent Review into the NDIS and there was no indication if and when its recommendations in relation to reviewing the NDIS pricing model will be implemented. To the extent that NDIS pricing is relevant to the determination of this matter, it is appropriate that we have regard to the NDIS pricing arrangements that were in evidence before us rather than a foreshadowed future potential change to those arrangements. In the circumstances, the possible review of the NDIS pricing model is not a matter which weighs against the making of the authorisation. Fixed funding and lack of capacity to fund over award entitlements [276] We accept the evidence that for most of the Respondents, their capacity to fund pay and conditions greater than the SCHADS Award is severely constrained by the NDIS pricing model. However, this has not prevented some of the Respondents from providing conditions which are more generous than the SCHADS Award. For example: • Amicus pays employees for ‘active’ time during the eight hour sleepover at the night shift rate after the first hour, and pays a sleepover allowance of $100.284 • ASTERIA has paid 12% superannuation since July 2021.285 • Aurora pays its support workers at level 3 rather than level 2 of the SCHADS Award286 and is prepared to continue providing some of the over award entitlements provided by the applicable zombie agreement, such as seven days of ex gratia leave to all employees during the Christmas holiday period.287 • Community Accessability pays a greater allowance for sleepover shifts than what is required under the SCHADS Award.288 [2025] FWCFB 131 58 • McCallum has identified particular benefits it can offer to staff upon transition from the applicable zombie agreement to the SCHADS Award, including the introduction of a number of above award conditions by way of policy with respect to matters like sleepover allowances, parental leave and wellbeing leave days.289 • At Mirridong, Day Services Support Workers receive six weeks annual leave with four weeks holiday loading and Residential Support Workers receive five weeks annual leave. • Mambourin provides 13 weeks of long service leave after 10 years to all staff who were employed by Mambourin prior to 1 January 2020, and who were previously covered by the Mambourin Agreement. Mambourin’s current pay rates for the employees who would be covered by the proposed authorisation are marginally higher than the SCHADS Award rates.290 [277] Apart from those conditions which continue to be provided for in zombie agreements, these arrangements are not currently provided for in an industrial instrument, so they are not regulated by the FW Act. It would be consistent with the objects of the FW Act for employees to have certainty in relation to these above award conditions and to be able to collectively negotiate these conditions. The range of above award conditions provided by some of the Respondents, which may be reflective of their varying needs and those of their employees, could be accommodated by negotiation of distinct terms and conditions set out in schedules to a multi-enterprise agreement. In our view, the fact that some employers offer over award conditions, which are not currently protected by an industrial instrument, is a matter which weighs in favour of grating the authorisation, with respect to those Respondents. [278] We accept that it is likely that it will be difficult for employees of all of the Respondents to negotiate conditions that will satisfy the ‘better off overall test’ unless there is an increase in NDIS funding. Some of the Respondents have also expressed concern that the retention of leave entitlements in zombie agreements will increase their costs without in any way increasing the wages of employees or improving productivity. [279] However, lack of financial capacity to bargain appears to be one of the reasons why the Commission has the power under s.246(3) to compel a person who is not an employer to attend a conference. Before exercising such power, the Commission must be satisfied that the person exercises such a degree of control over the terms and conditions of the employees who will be covered by the agreement that the participation of the person in bargaining is necessary for the agreement to be made. In other words, a pre-condition of the exercise of the power is that the Commission must be satisfied that the employers and employees covered by the supported bargaining authorisation will not be able to reach agreement without the participation of the person in bargaining. [280] Community Accessability submitted that it is inappropriate to require employers to enter ineffective bargaining to pressure the government to change its policy, however it appears that s.246(3) contemplates a process which is akin to this in that the participation of a third party such as a funding body may be regarded by the Commission as a necessary step towards reaching agreement when the employer and employees have been unable to do so because of the employer’s financial constraints. [2025] FWCFB 131 59 [281] Although the Commission is not required to provide assistance to parties in relation to bargaining for a proposed multi-enterprise agreement or to exercise powers under s.246(3), the existence of such powers indicates that any apprehensions about lack of funding and unlikelihood of reaching agreement are contemplated by the supported bargaining scheme and are therefore not matters which would weigh against the making of a supported bargaining authorisation. [282] Section 246(3) is also relevant to submissions made by Windarring and McCallum that the focus of supported bargaining is to address obstacles to bargaining and not unsuccessful bargaining or an absence of bargaining. McCallum submitted that it is capable of negotiating and agreeing terms of an enterprise agreement if it chooses to take that course as a means of regulating its employment terms and conditions, but it does not want to take that course at the present time. It does not require any assistance or support as envisaged by s.241(1)(a) or (c). George Gray and Life Skills, Distinctive Options and Noweyung also submitted that they have successfully bargained for an enterprise agreement so no issue of lack of skills, resources, bargaining strength or previous bargaining experience arises.291 However, the constraints to bargaining referred to in s.241(c) being a lack of skills, resources, bargaining strength or previous bargaining experience is not an exhaustive list. We accept that where an employer’s operation is dependent upon a fixed funding model provided by the Government either directly to the employer or to its clients, that this is an obstacle to bargaining and that this is contemplated by the Commission’s powers under s.246(3). [283] In Annual Wage Review 2023–24,292 which was issued on 3 June 2024, the Expert Panel referred to the decision in Application by UWU, AEU and IEU and noted that bargaining facilitated by the Commission pursuant to the authorisation had proceeded since the decision and that the Australian Government had participated intensively in the bargaining process since it is recognised that it will need to be the primary funding source for any wage increases that result from the bargaining.293 The Expert Panel also noted that the 2024 Budget had confirmed that the Australian Government is ‘committ[ed] to providing funding towards a wage increase for early childhood education and care workers, with details to be settled following Fair Work Commission processes’ and that this support ‘builds on … changes to the Fair Work Act to consider gender equality.’294 [284] Since that time, the Commission has approved the Early Childhood Education and Care Multi-Employer Agreement 2024-2026 (the ECEC Agreement)295 which originally covered 64 employers and now covers 353 employers and their employees as a result of variations to the ECEC Agreement. [285] The approval decision for the ECEC Agreement explained the supported bargaining process as follows: [19] Each group was represented by experienced and capable IR practitioners and industry or employee representatives. The UWU also arranged for several delegates to attend the conferences. Delegates came from each state bar one. The UWU delegates made a significant and positive contribution to the bargaining process; they spoke passionately and forcefully about their workplaces, about their industry, the children in their care and about their desire to bring about significant improvements for workers in the sector. [2025] FWCFB 131 60 [20] Commonwealth Government representatives attended several meetings, which assisted the process significantly. In this regard, the supported bargaining process provided a helpful forum for the bargaining representatives to liaise with the government as a group and for the government representatives to see in real-time the progression of the supported bargaining process. [21] There were many common interests and priorities across the whole bargaining group — particularly the common goal of delivering affordable, funded improvements in conditions for workers in the ECEC sector. However, there were many areas in which the interests of the parties did not align. It is not necessary or appropriate to be specific about these differences. However, it is important to note the positive and productive way in which the parties identified, debated, considered, evaluated, re-evaluated and resolved these areas of difference in order to progress the bargaining. [22] Four employers covered by the Authorisation and represented by ACA did not put the ECEC Agreement to a vote because their particular circumstances changed after the authorisation was made. Those four employers are not party to the ECEC Agreement and are not named in Part G of the ECEC Agreement.296 [286] The approval decision referred to the Commonwealth Government providing funding for an Early Childhood Education and Care Worker Retention Payment (EWRP). The EWRP provides for a first pay increase above the employee’s existing actual rate of pay equivalent to 10 per cent of the applicable award rate, payable to 30 November 2025 (and backdated to 2 December 2024 where eligible), and a second payment of an additional 5 per cent increase (making a total increase equivalent to 15 per cent above award rates) from 1 December 2025, payable to 30 November 2026.297 It is important to note that the rates in the ECEC Agreement are award rates and that that ECEC Agreement facilitates the on-payment of the EWRP to employees resulting in them being better off overall compared to the award. [287] The supported bargaining authorisation in relation to the ECEC Agreement was made at a time when it was not known whether additional funding would be provided to increase wages and also involved a relatively small number of employers. Although we have no evidence before us to establish the extent to which the Australian Government will participate in a supported bargaining process in the disability sector and whether it will increase funding, we also have no evidence which indicates that such a process will be unsuccessful. However, given that the authorisation granted in Application by UWU, AEU and IEU resulted in bargaining for and the subsequent approval of the ECEC Agreement, we find the following submission of HACSU persuasive: The employers in this sector suffer, in a way, from the same disadvantage as an individual employee. By themselves, they do not have the muscle, they are unlikely to have the muscle to influence the National Disability Insurance Agency to change its funding position. Together, including with the Fair Work Commission's assistance under section 246(3), they may be able to do so and may have one of the best chances practically available to do so. This represents a unique statutory opportunity to seek and obtain enhanced funding in a sector that needs it.298 [288] Having regard to all of these matters, we find that the funding model and the Respondents’ lack of capacity to fund over award entitlements do not weigh against a finding that it is appropriate for the Respondents to bargain together. [2025] FWCFB 131 61 VDSEA [289] Many of the Employers point to the VDSEA as evidence that a multi-enterprise agreement will not increase rates of pay. Mambourin submitted that the VDSEA negotiation process commenced at some point in 2017 but the first VDSEA did not commence operation until 2 March 2020. On this basis, it seems that any benefit to the employees arising from the granting of a supported bargaining authorisation is some years away. [290] Mambourin submitted that if there are two parallel multi-enterprise agreements applying to different groups of not-for-profit disability service providers in Victoria, arising from this application and the decision of Commissioner Lee in HSU and AEU presumably with differences in terms and conditions this would appear to be contrary to the public interest. [291] We are unable to draw conclusions about the likely outcome of any multi-enterprise agreement negotiations based on the VDSEA given it was made under different provisions of the FW Act and prior to the commencement of the supported bargaining authorisation provisions. The VDSEA was not made pursuant to a supported bargaining authorisation and there is no indication that the Australian Government was involved in the negotiations. [292] As to Mambourin’s submission that it would be contrary to the public interest two parallel multi-enterprise agreements applying to different and arbitrarily selected groups of not- for-profit disability service providers in Victoria, it is difficult to accept that this would be the case given that the scheme permits such an outcome and that ultimately any agreement made would be the product of negotiations between the employers and employees covered by the Agreement. In this regard we note that in ASU v Inner Melbourne Legal and Youthlaw,299 Deputy President Hampton granted a supported bargaining authorisation covering two community legal centres in Victoria, being Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal (IMCL) and Young People's Legal Rights Centre Inc T/A Youthlaw. The employers covered by that authorisation were subject to an earlier bargaining process that led to the making and approval of the Victorian Community Legal Centres Multi- Enterprise Agreement 2024-2027 (VCLC EA). However, that agreement was not approved by the majority of employees of IMCL and Youthlaw and consequently IMCL and Youthlaw are not covered by the VCLC EA. The consequence of the authorisation being made in relation to IMCL and Youthlaw is that if it leads to a multi-enterprise agreement being made and approved, this will result in two multi-enterprise agreements operating in Victoria in relation to the community legal sector. [293] Having regard to these matters, we find that the VDSEA is not a matter which weighs against the making of the authorisation. The Applicants have not established why they cannot bargain with the employers individually [294] There has been a history of recent bargaining with just one of the Respondents, Mambourin. Mambourin put a proposed single-enterprise agreement to a vote, shortly after the application was made, however, employees voted against it. George Gray showed a willingness to bargain during the period from September 2023 to November 2023 but did not issue a notice of employee representational rights and has not otherwise commenced the process to bargain for a single-enterprise agreement. Windarring said it is ‘open’ to bargaining as an individual [2025] FWCFB 131 62 organisation300 but has not initiated bargaining. Life Skills, Distinctive Options and Noweyung submitted that their ‘preferred option’ is to bargain for a single-enterprise agreement, however they have not initiated bargaining. McCallum and Amicus have specifically ruled out any form of bargaining. The remaining Respondents have not expressed a willingness to bargain for any type of agreement and have not initiated bargaining. [295] McCallum submitted that there should be a presumption against supported bargaining where an employer has demonstrated that it has the capacity to bargain at an individual level without need for support and where there has been no initiation of bargaining by an applicant prior to commencing proceedings for a supported bargaining authorisation application. In Application by UWU, AEU and IEU, the Full Bench said that a submission in similar terms ‘must be treated with caution and cannot be accepted without qualification.’301 The Full Bench went on to say that it is not the case that the Commission must be satisfied that supported bargaining under Division 9 of Part 4-2 is ‘more’ appropriate than any other mode of bargaining available under that Part and that such an approach would constitute an impermissible and erroneous alteration to the statutory test.302 [296] The submission that the Applicants have not established why they cannot bargain with the Respondents individually is a somewhat hollow one given that the Respondents almost universally submit that they have no capacity to bargain and that bargaining will not result in any increase in pay. It is likely that this is one of the reasons that the Applicants have applied for the authorisation rather than seeking to make individual single agreements with each of the Employers. As noted above, the Commission may, on its own initiative, assist parties covered by a supported bargaining authorisation by facilitating bargaining for the agreement. Such assistance may not be as readily available to parties negotiating a single-enterprise agreement which is why a supported bargaining authorisation might be regarded as a more effective pathway towards negotiating an enterprise agreement. [297] While the relevant parts of the objects of the FW Act in ss.3(f), 171(a) and 241(c) indicate that enterprise-level bargaining is intended to be the primary and preferred mode of agreement-making under the FW Act, we do not accept that the Applicants are required to establish that they cannot bargain with the Respondents individually before we can find that it is appropriate for the Respondents to bargain together. The AEU pointed out in its submissions in reply that such a consideration would undermine the purpose of the supported bargaining legislative regime that was aimed at remedying the defects of the low-paid bargaining stream. Such defects included that the Commission had required applicants to prove that the parties had availed themselves of alternative industrial mechanisms of bargaining before seeking to progress the application in the low-paid bargaining stream.303 In the circumstances, we do not find that this is a matter which weighs against a finding that it it is appropriate for the employers and employees to bargain together. [298] However, we believe that the recent history of bargaining at Mambourin is relevant to our consideration. Although agreement has not been reached between Mambourin and its employees, we are not satisfied, based on the evidence before us, that there are no prospects of agreement being reached. The fact that an employer is engaged in bargaining for a single- enterprise agreement will not automatically exclude that employer from a supported bargaining authorisation. However, it is a matter which is relevant to whether it is appropriate for the employers and employees that will be covered by the agreement to bargain together, having [2025] FWCFB 131 63 regard to the emphasis on enterprise level bargaining. We accept the submission of Mambourin that given that there has already been progress towards drafting the single-enterprise agreement, and some progress in negotiations, if Mambourin is able to proceed with single-enterprise bargaining, any single-enterprise agreement would likely commence operation before the multi- enterprise agreement. This is a matter which weighs against a finding that it would be appropriate for Mambourin to bargain with the other Respondents. As there is no recent history of bargaining with the other Respondents, this is a matter which weighs in favour of a finding that it would be appropriate for the Respondents (apart from Mambourin) to bargain together. Making the authorisation would not be in the public interest due to the real risk of unintended consequences, including market fragmentation resulting from disparities in pay and conditions [299] There is no evidence to support a finding that there will be a risk of unintended consequences, including market fragmentation resulting from disparities in pay and conditions. Making such a finding would require us to speculate about the outcome of bargaining, as part of our consideration of whether it is appropriate for the Respondents and their employees to bargain together, which is not a requirement of the statutory scheme. This is not a matter which weighs against the granting of the authorisation. The issues which the Applicants have highlighted are better suited for broader industry level changes rather than the limited scope of the authorisation sought [300] In our view, the fact that the issues raised by the Applicants may arise across the disability sector and are not specific to the Respondents, does not lead to a conclusion that it is not appropriate for the Respondents and their employees to bargain together. The immediate goal of the Applicants is to protect the above award conditions provided by the zombie agreements, and they have identified multi-enterprise bargaining as a way of achieving this. The protection of these entitlements is not a matter which affects all employers and employees in the sector. As such, the Applicants’ decision to apply for the authorisation rather than pursuing broader industry wide changes is not a matter which weighs against the granting of the authorisation. Proposed coverage of the multi-enterprise agreement [301] ASTERIA submitted that we should take into account the extent to which it is fair for a small collection of employers to be forced into an unknown industrial process with the hope that the Minister may offer up more funding. The other side of this argument is that if successful, bargaining could result in an enterprise agreement which benefits employers to attract and retain skilled workers into their services. In other words, it is difficult to predict, at this early stage of the process, whether the outcome for the Respondents in bargaining will be positive or negative and therefore whether it is fair or unfair for specific employers to be covered by the authorisation. We believe that perceived notions of unfairness do not provide a sufficient basis for a finding that it is not appropriate for the Respondents to bargain together. [302] However, we accept that the proposed coverage of the multi-enterprise agreement is a relevant consideration as to whether it is appropriate for the Respondents to bargain together. [2025] FWCFB 131 64 [303] The Applicants made the application to coincide with the termination of zombie agreements on 7 December 2023. The Applicants have made an application to extend the zombie agreements applying to the Respondents and their employees which was granted by the Commission and submit that employees will be worse off if the zombie agreements are terminated. [304] The Respondents who continue to be covered by zombie agreements are: • ASTERIA • Aurora • Community Accessability • Distinctive Options and Noweyung • George Gray • Life Skills • McCallum • Milparinka • Mirridong • Windarring [305] ASTERIA and Mirridong both submitted that they no longer apply the zombie agreements which cover them. [306] Mirridong submitted that it has not operated under the zombie agreement since February 2012 as it did not cover all of Mirridong’s employees and its business model has changed. Mirridong submitted that all employees were provided with an offer of employment in February 2012 with new terms and conditions of employment. Employees retained six weeks annual leave with four weeks holiday loading for Day Services Support Workers and five weeks annual leave for Residential Support Workers. Employees accepted a change to 10 days Personal Leave pro rata. Mirridong provides four paid training days per annum plus individual training and paid First Aid training. Mirridong submitted that the SCHADS Award was identified as being more beneficial to its employees in respect of wages and for casual employees working weekends, public holidays and overtime rates. [307] We understand from the submissions of Mirridong that it has elected to apply conditions of the SCHADS Award which are more favourable than the zombie agreement and to continue to apply some aspects of the zombie agreement. However, the fact that Mirridong has adopted these practices does not mean that the zombie agreement no longer applies. In determining the application by the AEU to extend the zombie agreements which cover some of the Respondents in these proceedings,304 the Full Bench said, The circumstances in which and reason Mirridong ceased to apply the Agreement are unclear. There does not appear to have been a transfer of business that led to no employees transferring which is the most likely way in which the Agreement would no longer apply. [308] We agree with the these observations of the Full Bench. Having regard to the coverage clause, and that it has not been terminated, we believe that it is likely that the zombie agreement continues to apply. [2025] FWCFB 131 65 [309] In the case of ASTERIA, it claims that the ASTERIA Services Disability Services Victoria (Part 1) Collective Agreement 2008 (ASTERIA zombie agreement) does not cover or apply to any ASTERIA employee and that it is a redundant industrial instrument. ASTERIA submitted that the ASTERIA zombie agreement covers instructors and that in 2008, the instructor model was the only model of disability support work provided by ASTERIA and other similar providers. ASTERIA submitted that instructors delivered education to persons with a disability with a view to developing and promoting independence. Such work was delivered by persons generally with an education background (including a Certificate IV in Community Training), and in some cases by degree-qualified teachers, and at all times in a classroom environment. [310] ASTERIA submitted that the instructor model was aligned to particular conditions of employment, including six weeks of annual leave. ASTERIA said that it no longer employs instructors and that the vast majority of its disability support work is delivered one on one and in the community, with some services provided in a group setting. No employee is required to have a background in training or education. ASTERIA submitted that the ASTERIA zombie agreement ceased to be relevant to ASTERIA’s workforce and operations many years ago. Therefore, ASTERIA does not agree with HACSU’s submission that the ASTERIA zombie agreement is relevant to setting the minimum conditions of employment for its workforce. [311] We note that ASTERIA made submissions to this effect in relation to the application by the AEU to extend zombie agreements which cover some of the Respondents in these proceedings and which is referred to above.305 ASTERIA opposed the application. In that matter, the decision of the Full Bench records the AEU submissions that coverage is not a matter that is determined based on an employer’s operational changes but a question of fact regarding the nature of work being performed by employees. Since there are still some employees who perform work of an ‘instructor’, including to deliver group supports, the AEU submitted in those proceedings that these employees continued to be covered by the ASTERIA zombie agreement.306 The Full Bench did not determine the issue of whether the ASTERIA zombie agreement applied to any employees, but extended the agreement for reasons which included the application before us.307 [312] Clause 4.2 of the ASTERIA zombie agreement states, ‘This Agreement shall apply to all employees employed by the employer as an Instructor.’ The term ‘Instructor’ is defined in clause 3.7 as ‘an instructor as outlined in clause 11 and appendix 1 (A) - 1 (E) of this agreement.’ Clause 11 is in relation to types of employment and does not refer to ‘instructor’. Appendices 1(A) - 1(E) of the ASTERIA zombie agreement provide the classification descriptors for Band 1 Instructors (Appendix 1(A)), Band 2 Instructors (Appendix 1(B)), Band 3 Instructors (Appendix 1(C)), Program Manager (Appendix 1(D)), and Assistant Program Manager (Appendix 1(E)). Appendices 1(A) - 1(C) define the various levels of ‘Instructor’ as ‘a person appointed as such to provide ongoing program support and skills training to assist persons with a disability in a day program.’ There is no reference in the descriptors to such work being delivered by persons generally with an education background, and in some cases by degree- qualified teachers, and at all times in a classroom environment. In the circumstances, the descriptors appear to be sufficiently broad to cover the services which ASTERIA says it provides in a group setting. In this regard, we note the AEU’s submissions that ASTERIA’s website refers to the delivery of group supports provided on weekdays between 8:30am-3:30pm [2025] FWCFB 131 66 and that employees are required to prepare, deliver and facilitate such supports, which is a major and substantial proportion of work of instructors.308 [313] Taking all of these matters into account, we believe that it is unlikely that the ASTERIA zombie agreement has no application to current employees. [314] The employees of the Respondents who are covered by zombie agreements enjoy some of the over award benefits which come with enterprise bargaining. This is consistent with the object of the FW Act to achieve productivity and fairness through an emphasis on enterprise - level collective bargaining. We note that employees who are covered by zombie agreements are likely to suffer some disadvantage when the zombie agreements terminate and that access to bargaining to preserve these entitlements is consistent with the objects of the FW Act. Some of the Respondents have expressed a preference to be covered by a single-enterprise agreement but only Mambourin has initiated bargaining. These circumstances weigh in favour of a finding that it is appropriate that the following Respondents bargain together: • ASTERIA • Aurora • Community Accessability • Distinctive Options and Noweyung • George Gray • Life Skills • McCallum • Milparinka • Mirridong • Windarring Matters considered by previous decisions of the Commission [315] In previous decisions of this Commission which have determined applications under s.242 of the FW Act, other matters which have been considered under s.243(1)(b)(iv) which are relevant to the current application, and which weigh in favour of making the authorisation are: (a) That granting the authorisation sought would open the prospect of improving rates of pay of a female dominated workforce, which would be consistent with that part of the object of the FW Act in s.3(a) concerned with the promotion of gender equality.309 (b) That there has been a relatively low uptake of enterprise bargaining in the sector.310 (c) That the making of the authorisation will more readily facilitate participation of funding bodies in the negotiations.311 [316] The objects of the FW Act include the provision of workplace relations laws that promote job security and gender equality. Of those Respondents who provided information about the gender profile of their workforce, all of them employed a majority of women. In the 2024 Annual Wage Review Decision, the Expert Panel referred to a report, prepared by the Social Policy Research Centre at the University of New South Wales, which identified 29 occupations covered by 13 modern awards which were large (containing over 10,000 people); very highly feminised (over 80 per cent female); and located within feminised industry classes [2025] FWCFB 131 67 (over 60 per cent female).312 The report identified that there are 62,122 ‘Aged and Disabled Carers’ covered by the SCHADS Award and that 86.5% of these employees are women. On the basis of this research, we can be comfortably satisfied that the majority of disability support workers are women and that they are award dependent. As employees must be better off overall under a proposed enterprise agreement as a condition of the agreement being approved by the Commission, it follows that if a multi-enterprise agreement is made following an authorisation being granted, that this will improve conditions of employment, (as employees will be better off overall compared to the SCHADS Award) and enhance gender equality (given that most of the employees are women). Many of the Respondents have submitted that multi-enterprise bargaining will not improve gender equality because there is no ability to offer higher wages without increased funding. As noted above, the statutory provisions do not require us to be satisfied, at this early stage of the process, that the authorisation will in fact result in an agreement being made with higher rates of pay in order to find that it is appropriate for the Respondents to bargain together. [317] We find that granting the authorisation will open the prospect of improving rates of pay of a female dominated workforce, and that there has been a relatively low uptake of enterprise bargaining in the disability sector. We accept that the making of the authorisation will more readily facilitate participation of funding bodies in the negotiations. These are all matters which weigh in favour of the making of the authorisation. Conclusion re whether it is appropriate for the employers and employees that will be covered by the agreement to bargain together [318] The AEU submitted that the state of satisfaction that is found in s.243(b) is that it is appropriate for the identified employers and employees to bargain together. It is not a state of satisfaction about whether they should bargain at all;313 whether single-enterprise bargaining is unavailable or would fail; or whether single-enterprise bargaining or no bargaining at all is more appropriate.314 It is a state of satisfaction about whether having regard to the matters set out, the mandatory considerations and the discretionary considerations, that it is appropriate for the parties to bargain together.315 [319] The AEU submitted that in reaching that state of satisfaction or considering whether that state of satisfaction has been reached, there is a broad discretionary scope that allows the Commission to place weight as it considers appropriate on both the mandatory considerations but also any additional considerations that are identified in s.243(1)(b)(iv). No single matter in section 243(1)(b) is considered determinative.316 The Commission does not need to be satisfied that supported bargaining is more appropriate than any other form of bargaining, or bargaining at all, and it is not a requirement that there has been bargaining at the single-enterprise level or that such bargaining has been attempted before the state of satisfaction in subsection (b) can be reached.317 [320] In our view, the AEU’s submissions correctly describe the Commission’s task in applying s.243(1)(b) and we have adopted this approach in our consideration of the matter. [321] We have found that the Respondents have clearly identifiable common interests and that the likely number of bargaining representatives for the Proposed Agreement would be consistent with a manageable collective bargaining process. We have also found that rates of [2025] FWCFB 131 68 pay and conditions that are the same as, or close to, the minimum rates of pay in the ERO and the conditions in the SCHADS Award are prevalent in the disability sector and that low rates of pay prevail in the disability sector. These are all matters which weigh in favour of a finding that it is appropriate for the Respondents and their employees to bargain together. [322] We have found that the funding model and lack of capacity of the Respondents to fund over award entitlements do not weigh against a finding that it is appropriate for the Respondents to bargain together. [323] Each of the Respondents have sought to distinguish themselves based on matters such as size, participants, financial position, types of services, workforce compositions, operational requirements and/or revenue sources. On this basis they contend that they will each have different priorities in bargaining and that there is a risk that consensus will not be reached or that the interests of some Respondents, especially those with larger numbers of employees and financial resources will be prioritised over others. Although we are not required to predict the outcome of bargaining or find that bargaining is likely to be successful in our determination of the matter, we accept that the different characteristics of the Respondents are matters which are relevant to the objects of the supported bargaining scheme which include to assist and encourage employees and employers to make an enterprise agreement that meets their needs. [324] If the consequence of the differences between the Respondents is that it is unlikely that an agreement will be made that meets their respective needs, this may weigh against a finding that it is appropriate for the employers and employees that will be covered by the agreement to bargain together. However, in this case, the operational differences between the Respondents have not resulted in significantly different conditions applying to their employees. This is not surprising as differences in, for example, hours of operation, are readily accommodated by industrial instruments which have different provisions and conditions which apply to day workers and shift workers. In other words, the fact that some Respondents operate residential services that operate 24/7 and that other Respondents offer community-based programs that operate during the day is a matter that can be reasonably accommodated in a single industrial instrument. [325] Most of the Respondents have at least some employees who are employed pursuant to the SCHADS Award. Where the Respondents have employees who are covered by zombie agreements, the intention of all the Respondents, if the authorisation is not made, appears to be to apply the SCHADS Award when the zombie agreements terminate, and in some cases apply over award conditions by way of policy in respect of leave entitlements and/or sleepover allowances. The granting of the authorisation will enable the Respondents and their employees to consider whether any specific modifications of the SCHADS Award conditions should be made to meet their needs, however there is no evidence before us which indicates that the SCHADS Award conditions are not working well for each of the Respondents and that significant changes to current conditions are likely to be sought. In relation to the different financial circumstances of the Respondents, we repeat our earlier observations that we accept that for most of the Respondents, their capacity to fund pay and conditions greater than the SCHADS Award is severely constrained by the NDIS pricing model and that where an employer’s operation is dependent upon a fixed funding model provided by the Government, that this is an obstacle to bargaining contemplated by the Commission’s powers under s.246(3). [2025] FWCFB 131 69 [326] Having regard to these matters, the operational differences identified by the Respondents do not weigh against a finding that it is appropriate for the Respondents and their employees to bargain together. [327] Most of the findings that we have made which favour the authorisation being made are likely to be available in respect of most, if not all, disability services funded by the NDIS in Australia. In ASU v Inner Melbourne Legal and Youthlaw, Deputy President Hampton observed that in some circumstances, the grouping of a small number of employers within a proposed authorisation of this kind, from amongst a much wider cross-section of employers in a sector, may need to be considered.318 In our view, the reason for the selection of the Respondents in this matter is an important consideration as to whether it is appropriate for them to bargain together. [328] In this case, the common ‘need’ amongst many of the employees covered by the application (compared to the needs of employees in the disability sector generally) is the retention of above award conditions currently provided in zombie agreements which continue to apply. As noted above, many of the Respondents provide some above award conditions, however, apart from those conditions which continue to be provided for in zombie agreements, these arrangements are not currently provided for in an industrial instrument, so they are not regulated by the FW Act. It would be consistent with the objects of the FW Act for employees to have certainty in relation to these above award conditions and to be able to collectively negotiate these conditions. [329] This common need is not shared by employees of Respondents who are no longer covered by zombie agreements. Although these employees may wish to receive the enhanced leave conditions and other entitlements previously provided by expired zombie agreements, there is no evidence that they continue to receive those benefits, apart from some employees at Mambourin, who receive enhanced long service leave as an over award benefit. These employees may have previously experienced a reduction in their conditions, but they are in a different position to the employees who are covered by zombie agreements which remain in force, who wish to maintain and protect above award conditions that they currently receive by operation of an industrial instrument. [330] Generally, the way that employees secure above award conditions under the FW Act is through bargaining. However, as already noted in this decision, there has been no recent history of bargaining with most of the Respondents (apart from Mambourin) due to unwillingness to bargain and/or funding constraints. Although some of the Respondents have indicated that they are willing to bargain for a single-enterprise agreement, they have taken no steps to initiate bargaining (apart from Mambourin) and it is difficult to see how bargaining for a single- enterprise agreement could be successful given the barriers that all the Respondents have identified. [331] As there is no recent history of bargaining with most of the Respondents, we have found that this is a matter which weighs in favour of a finding that it would be appropriate for the Respondents (apart from Mambourin) to bargain together. [332] In circumstances where the Respondents covered by zombie agreements have not initiated bargaining for a single-enterprise agreement and at least some of their employees will [2025] FWCFB 131 70 be disadvantaged by the zombie agreements terminating, we find it is appropriate that the Respondents who are covered by at least one zombie agreement bargain together having regard to all of the matters in s.243(1)(b). These Respondents are: • ASTERIA • Aurora • Community Accessability • Distinctive Options and Noweyung • George Gray • Life Skills • McCallum • Milparinka • Mirridong • Windarring [333] It follows that we are not satisfied that it is appropriate for the following Respondents, that are not covered by zombie agreements, to bargain with the Respondents that are covered by zombie agreements: • Amicus; • Menzies; and • Mambourin [334] As such, Amicus, Menzies and Mambourin will not be covered by the authorisation. Section 243(1)(c) — Are at least some of the employees who will be covered by the Agreement represented by an employee organisation? [335] We are satisfied, based on the evidence of Ms Gillespie and Ms Carter that at least some of the employees who will be covered by the Proposed Agreement are represented by the IEU and HACSU as required by s.243(1)(c). Conclusion [336] On the basis of our consideration of the matters specified in s.243(1)(b) of the FW Act, we are satisfied that it is appropriate for the following Respondents and their employees who perform disability work in Victoria (not including employees of the Respondents whose employment is covered by the Supported Employment Services Award 2020) to bargain together: • ASTERIA • Aurora • Community Accessability • Distinctive Options and Noweyung • George Gray • Life Skills • McCallum [2025] FWCFB 131 71 • Milparinka • Mirridong • Windarring [337] Further, we are satisfied in relation to each of the applicable requirements in s.243(1), and that the restrictions in s.243A do not apply. We are therefore required to make the supported bargaining authorisation sought by HACSU and the AEU. The authorisation is made by a separate order that is published in conjunction with this decision and which specifies the matters required by s.243(3), as applicable. In accordance with s.234(4), the authorisation will operate from the date of this decision. DEPUTY PRESIDENT Appearances: Ms N. Stojanova, Counsel, for the Health Services Union Ms S. Kelly, Counsel, for the Australian Education Union Mr L. Meagher, Counsel, for the Respondent (Community Accessability) Mr D. Ternovski, Counsel, for the Respondent (Mambourin Enterprises) Mr C. Broadbent, Solicitor, for the Respondent (McCallum Disability Services) Mr D. Prior, Legal Representative, for the Respondent (Milparinka Disability Services) Ms L. Quinn, Legal Representative, for the Respondents (George Gray Centre, Life Skills Victoria, Distinctive Options AND Noweyung, and Dame Pattie Menzies Centre) Mr M. Amor, the Respondent (Windarring Limited) Ms A. Constable, the Respondent (Asteria Services) Ms S. Wight, the Respondent (Amicus Community Services) Ms D. Milne, the Respondent (Mirridong Services) Mr J. Stanton, the Intervenor (Ai Group) Ms K. Tobin, the Intervenor (ACTU) Hearing details: 2024 11 and 12 November In person, Melbourne Printed by authority of the Commonwealth Government Printer [2025] FWCFB 131 72 <PR788740> 1 Witness Statement of Elaine Gillespie dated 2 February 2024 (Gillespie Statement) [2], Digital Court Book (DCB) 255 2 Ibid [17], DCB 258 3 Ibid [5]-[6] DCB 256 4 Ibid [18], DCB 258 5 Ibid [19], DCB 258 6 Ibid [19], DCB 258 7 Ibid [20], DCB 258 8 Witness Statement of Angela Carter dated 2 February 2024 (Carter Statement) [12], DCB 39 9 Gillespie Statement [21], DCB 258 10 Ibid [22], DCB 258 11 Ibid [23], DCB 258 12 Carter Statement [17], DCB 40 13 Ibid [17], DCB 40 14 Ibid [19], DCB 40 15 Ibid [21], DCB 41 16 Ibid 17 Gillespie Statement [24], DCB 259 18 Gillespie Statement [25]-[26], DCB 259 19 Ibid [27], DCB 259 20 Ibid [28], DCB 259 21 Ibid [29], DCB 261 22 Ibid [30], DCB 261 23 Carter Statement [22], DHB 41 24 Ibid [23], DHB 41 25 Ibid [24], DHB 42 26 Ibid [26], DHB 42 27 [2023] FWCFB 176 28 Ibid [20] 29 [2023] FWCFB 176, [20] 30 Ibid, [27] 31 Ibid, [27] 32 Ibid, [41] 33 Ibid, [29] 34 Gillespie Statement [12], DCB 257; Carter Statement [9], DHB 39 35 Outline of Submissions of the Australian Education Union [5]-[6], DCB 239 36 Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [10], DCB 1404 37 Outline of Submissions – McCallum Disability Services Inc [9], DCB 1590 38 Ibid [10], DCB 1590 39 Ibid [11], DCB 1590 40 Ibid [12], DCB 1590 [2025] FWCFB 131 73 41 Carter Statement [12], DCB 39 42 Outline of Submissions - George Gray Centre [4], DCB 1321 43 Outline of Submissions - Distinctive Options and Noweyung Ltd [5], DCB 1280 44 Application by UWU, AEU and IEU [2023] FWCFB 176, [29]. 45 Outline of Submissions of the AEU [26]-[27], DCB 245-246 46 Carter Statement [27], DCB 42-43 47 Ibid [31], DCB 43-44 48 Outline of Submissions by HACSU [39], DCB 26-27 49 Ibid [41] DCB 28 50 Ibid [42], DCB 28 51 Outline of Submissions of the ACTU [40], DCB 1857 52 Ibid [41], DCB 1857 53 Ibid [41], DCB 1857-1858 54 Ibid [43], DCB 1858 55 Submissions by ASTERIA Services Inc [53], DCB 863 56 Outline of Submissions of Community Accessability [1(a)], DCB 907 57 Ibid [15(b)], DCB 912 58 Ibid 59 Ibid [15(c)], DCB 912 60 Ibid [16], DCB 913 61 Distinctive Options and Noweyung Ltd Outline of Submissions [26]-[28], DCB 1286; George Gray Centre Outline of Submissions [25]-[27], DCB 1326; Life Skills Victoria Outline of Submissions [29], DCB 1373 62 Submissions of Windarring Limited [21], DCB 1738 63 Ibid [25], DCB 1739 64 Ibid [26], DCB 1739-1740 65 Ibid [28], DCB 1740 66 Ibid [32], DCB 1741 67 Ibid [33], DCB 1741 68 Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [18], DCB 1410 69 Ibid [20], DCB 1410 70 Ibid [21], DCB 1410-1411 71 Outline of Submissions – McCallum Disability Services Inc [138], DCB 1608 72 Ibid [144], DCB 1608 73 Ibid [147], DCB 1609 74 Application by UWU, AEU and IEU [2023] FWCFB 176, [30] 75 Ibid 76 Ibid, [32] 77 Ibid, [33] 78 Ibid, [32] 79 Outline of Submissions of Community Accessability [15(b)], DCB 912 80 [2023] FWCFB 176, [48] 81 [2025] FWCFB 74 82 Ibid, [557] 83 [2024] FWC 2036 84 [2024] FWC 2491 [2025] FWCFB 131 74 85 [2024] FWC 2713 86 Ibid, [85] 87 [2024] FWC 2036 88 Ibid, [38] 89 Ibid, [36] 90 Ibid, [37] 91 Ibid, [38] 92 [2024] FWC 2491 93 Ibid, [27]-[28] 94 [2025] FWCFB 74 95 Ibid, [362] 96 Ibid, [372] 97 Ibid, [376] 98 Ibid 99 Ibid 100 Ibid 101 Ibid 102 Ibid [377] 103 Disability Support Worker 1, 2, 4, or 4 are not SCHADS Award classifications but are four types of workers referred to in the NDIS DSW Cost Model which recognise ‘that providers must employ Disability Support Workers with different skill levels and level of experience to meet the needs of participants’. 104 These rates of pay will increase by 3.5% pursuant to the Annual Wage Review 2025 from the employee’s first full pay period that starts on or after 1 July 2025. 105 Exhibit 4 106 Employee earnings, Australian Bureau of Statistics, August 2024 107 Average weekly earnings, Australian Bureau of Statistics, November 2024 108 Carter Statement [38], DCB 45 109 These rates of pay will increase by 3.5% pursuant to the Annual Wage Review 2025 from the employee’s first full pay period that starts on or after 1 July 2025. 110 Aide Memoire prepared by the Australian Education Union 111 Ibid 112 Ibid 113 Ibid 114 DCB 830 and 872 115 DCB 1294, 1333 and 1379 116 DCB 1427 and 1760 117 DCB 922 118 DCB 828-829 119 DCB 925-926 120 DCB 1277 121 DCB 1426 122 DCB 638 123 Witness Statement and Submission of Katrina Ray, Head of People & Culture – Amicus Community Services, DCB 829 124 Witness Statement of Annie Constable [10], DCB 872 125 Submission of Aurora Support Services, DCB 899 [2025] FWCFB 131 75 126 Ibid, DCB 900 127 Witness Statement of Rick Lawford dated 15 March 2024 [33], DCB 925 128 [34] DCB 926 129 Witness Statement of Lauren Baker dated 15 March 2024 [41f], DCB 1628 130 Submissions of Mirridong Services [2], DCB 1731 131 Ibid [21], DCB 1410-1411 132 DCB 828-829 133 DCB 919 134 DCB 1277 135 DCB 1292 136 DCB 1322 137 DCB 1368 138 DCB 1425-1426 139 DCB 1635-1636 140 DCB 1762-1793 141 DCB 827 142 DCB 904 143 DCB 919 144 DCB 1281-1282 145 DCB 1332 146 DCB 1368-1369 147 DCB 1425 148 DCB 1633 149 DCB 1731 150 DCB 1762-1763 151 Transcript PN443-PN444 152 Outline of Submissions of HACSU [47], DCB 29-32 153 Ibid [49], DCB 32-33 154 Submissions of Asteria [58], DCB 864 155 Ibid [59], DCB 864 156 Ibid [64], DCB 864 157 Outline of Submissions of Community Accessability [18(a)], DCB 913 158 Ibid [20], DCB 914 159 Ibid [21], DCB 914 160 Ibid [21(a)], DCB 914 161 Supplementary Outline of Submissions of Community Accessability [4]-[6], DCB 1830 162 Ibid [8], DCB 1830 163 Supplementary Outline of Submissions of Community Accessability [10], DCB 1831 164 Outline of Submissions of Community Accessability [21(c)], DCB 914-915 165 Supplementary Outline of Submissions of Community Accessability [13], DCB 1832 166 George Gray Centre – Outline of Submissions [29], DCB 1327 167 Ibid [31]-[33], DCB 1373 168 Witness Statement of Carole Broxham dated 14 March 2024 [19], DCB 1379 169 Submissions of Windarring [39], DCB 1743 [2025] FWCFB 131 76 170 Ibid [42], DCB 1744 171 Ibid [44], DCB 1745 172 Ibid [46], DCB 1746 173 Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [23]-[26], DCB 1411 174 Ibid [28], DCB 1412 175 Ibid [28], DCB 1413 176 Ibid [29], DCB 1413 177 Ibid [30], DCB 1413 178 Ibid [31], DCB 1413-1414 179 Ibid [32], DCB 1414 180 Outline of Submissions – McCallum Disability Services Inc [178], DCB 1614 181 Ibid [189], DCB 1614 182 Supplementary Outline of Submissions – McCallum Disability Services Inc [15], DCB 1841 183 Outline of Submissions – McCallum Disability Services Inc [191], DCB 1617 184 Ibid [185]-[187], DCB 1615 185 Ibid [194]-[199] DCB 1617-1618 186 Application by UWU, AEU and IEU [2023] FWCFB 176, [34]. 187 [2024] FWC 2583 188 Ibid, [45] 189 [2024] FWC 2036, [61]. 190 Ibid, [42]-[43] 191 [2024] FWC 2713 192 Ibid, [30] 193 Outline of Submissions of the AEU [30], DCB 247 194 Ibid [31], DCB 247 195 Outline of Submissions of HACSU [54], DCB 33 196 Ibid [54], DCB 34 197 Outline of Submissions of the ACTU [55], DCB 1859 198 Ibid [56], DCB 1859 199 Australia Industry Group Submission [40], DCB 1895 200 Submissions of ASTERIA Services Inc [72]-[73], DCB 865 201 Ibid [74], DCB 866 202 Ibid [76], DCB 866 203 Outline of Submissions of Community Accessability [23], DCB 915 204 Submissions of Windarring Limited [47]-[49], DCB 1746-1747 205 Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [37]-[38], DCB 1415 206 Ibid [40]-[41] DCB 1415 207 Ibid [43] DCB 1415 208 Ibid [44] DCB 1416 209 Outline of Submissions – McCallum Disability Services Inc [201]-[202], DCB 1618 210 Ibid [209], DCB 1619 211 Application by UWU, AEU and IEU [2023] FWCFB 176, [36] 212 See for example Apple Pty Limited [2023] FWCFB 185, [5] where there were 107 employee bargaining representatives for the Apple Australia National Enterprise Agreement 2023 in addition to two unions. 213 Application by UWU, AEU and IEU [2023] FWCFB 176, [37] [2025] FWCFB 131 77 214 Outline of Submissions of the ACTU [67]-[68], DCB 1862 215 Outline of Submissions of the ACTU [76]-[77], DCB 1863 216 Outline of Submissions of HACSU [61], DCB 35 217 Ibid [65], DCB 35 218 Ibid [66]-[67], DCB 36 219 Australia Industry Group Submissions, [15], DCB 1888 220 Ibid, [44], DCB 1896 221 Ibid, [46], DCB 1896 222 Ibid, [53], DCB 1898 223 Ibid, [54], DCB 1898 224 Ibid, [54], DCB 1899 225 Witness Statement and Submission of Katrina Ray, Head of People & Culture – Amicus Community Services, DCB 830 226 Submissions of ASTERIA Services Inc [80], DCB 866 227 Ibid [81], DCB 866 228 Ibid [85], DCB 867 229 Ibid [90], DCB 868 230 Ibid [94], DCB 868 231 Ibid [96], DCB 868 232 Ibid [98], DCB 869 233 Ibid [109]-[110], DCB 870 234 Ibid [111], DCB 870 235 Ibid [113], DCB 871 236 Outline of Submissions of Community Accessability [27], DCB 916 237 Ibid [30], DCB 916 238 Ibid, [31], DCB 917 239 Ibid [32], DCB 917 240 Ibid [33], DCB 917 241 Distinctive Options and Noweyung Ltd – Outline of Submissions [41] DCB 1288 242 Ibid [42]-[43], DCB 1288 243 Ibid [44], DCB 1288 244 Statement of Ernie Metcalf dated 14 March 2024 [17], DCB 1294 245 George Gray Centre – Outline of Submissions [41]-[42], DCB 1328 246 Witness Statement of Peter Green dated 14 March 2024 [16]-[17], DCB 1333 247 Ibid [18], DCB 1333 248 Submission of Mirridong Services Inc [1], DCB 1731 249 Ibid [2], DCB 1731 250 Ibid [2], DCB 1731 251 [51] DHB 1748 252 [53]-[59] DHB 1749-1750 253 [60]-[62] DHB 1750-1751 254 [65]-[68] DHB 1752 255 Submissions of Windarring [71]-[73], DCB 1753 256 Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [46]-[47], DCB 1416 257 Ibid [55], DCB 1417 [2025] FWCFB 131 78 258 Ibid [56]-[57], DCB 1417-1418 259 Ibid [58]-[59], DCB 1418 260 Ibid [60]-[61], DCB 1418 261 Ibid [62]-[64], DCB 1418 262 Ibid [65], DCB 1419 263 Ibid [67]-[69], DCB 1419 264 Ibid [70]-[73], DCB 1419 265 Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [75]-[78] DCB 1420 266 Ibid [79]-[81], DCB 1421 267 Ibid [82], DCB 1421 268 Ibid [85], DCB 1422 269 Outline of Submissions – McCallum Disability Services Inc [27], DCB 1593 270 Ibid [33], DCB 1594 271 Ibid [35]-[36], DCB 1595 272 Ibid, [44] DCB 1596 273 Ibid, [49] DCB 1596 274 Ibid, [58] DCB 1598 275 Ibid, [63] DCB 1598 276 Ibid, [78]-[81] DCB 1601 277 Ibid [83]-[87], DCB 1601 278 Ibid [100], DCB 1603 279Ibid [101]-[104], DCB 1603 280 Ibid [121], DCB 1605 281 Ibid [128]-[129], DCB 1606 282 Ibid [133]-[135], DCB 1607 283 Application by UWU, AEU and IEU [2023] FWCFB 176, [54]; Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others [2024] FWC 2036, [58]; Australian Municipal, Administrative, Clerical and Services Union v Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal, Young People's Legal Rights Centre Inc T/A Youthlaw [2024] FWC 2491, [39]. 284 Witness Statement and Submission of Katrina Ray, Head of People & Culture – Amicus Community Services, DCB 829 285 Witness Statement of Annie Constable [10], DCB 872 286 Ibid, DCB 900 287 Submission of Aurora Support Services, DCB 899 288 Witness Statement of Rick Lawford dated 15 March 2024 [34], DCB 926 289 Witness Statement of Lauren Baker dated 15 March 2024 [41f], DCB 1628 290 Ibid [21], DCB 1410-1411 291 Transcript PN1033 292 [2024] FWCFB 3500 293 Ibid, [109] 294 Ibid 295 [2024] FWCFB 461 296 Ibid, [19]-[22] 297 Ibid [26] 298 Transcript PN302 299 [2024] FWC 2491 [2025] FWCFB 131 79 300 Transcript PN 1157 301 [2023] FWCFB 176, [41] 302 Ibid 303 Outline of Reply Submissions of the Australian Education Union [11], DCB 771-772 304 Applications by Australian Education Union to extend default period for the collective agreement based transitional instruments listed in schedule 1 [2024] FWCFB 233, [62]-[63] 305 Applications by Australian Education Union to extend default period for the collective agreement based transitional instruments listed in schedule 1 [2024] FWCFB 233, [62]-[63] 306 Ibid, [64] 307 Ibid, [31]; [59]; [66]. 308 Outline of Reply Submissions of the Australian Education Union [5b], DCB 770 309 Application by UWU, AEU and IEU [2023] FWCFB 176, [55]; Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others [2024] FWC 2036, [59]-[60]; Australian Municipal, Administrative, Clerical and Services Union v Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal, Young People's Legal Rights Centre Inc T/A Youthlaw [2024] FWC 2491. [40]; 310 Application by UWU, AEU and IEU [2023] FWCFB 176, [56]; Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others [2024] FWC 2036, [61]. 311 Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others [2024] FWC 2036, [62]; Australian Municipal, Administrative, Clerical and Services Union v Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal, Young People's Legal Rights Centre Inc T/A Youthlaw [2024] FWC 2491, [43]. 312 Natasha Cortis et al, UNSW Social Policy Research Centre, Gender-based Occupational Segregation: A National Data Profile (Final Report, 6 November 2023) (‘Stage 1 report’) cited in [2024] FWCFB 3500, [92] 313 Transcript PN367 314 Transcript PN368 315 Transcript PN369 316 Transcript PN370 317 Transcript PN372 318 [2024] FWC 2491, [44]