1 Fair Work Act 2009 s.185—Enterprise agreement United Workers’ Union (AG2026/350) DEPUTY PRESIDENT MASSON MELBOURNE, 13 MAY 2026 Application for approval of the Thrive Group Tasmania Enterprise Agreement 2025- application filed outside 14-day period required by s 185(3)(a) – application to grant extension of time pursuant to s 185(3)(b) – found that it would not be fair in all the circumstances to extend time – application for approval of agreement dismissed. [1] An application has been made for approval of the Thrive Group Tasmania Enterprise Agreement 2025 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act) by the United Workers Union (the UWU). The Agreement is a single enterprise agreement. [2] The Agreement was ‘made’ on 5 June 2025 which means the application was required to be filed on or by 19 June 2025 in accordance with s 185(3)(a) of the Act. The application by the UWU was filed on 3 March 2026, meaning the application was filed 257 days outside the 14-day filing period. The UWU seeks an extension of time for the filing of the application pursuant to s 185(3)(b) of the Act. The extension of time sought by the UWU is opposed by Thrive Group Tasmania Inc. (Thrive) [3] A Mention was conducted in relation to the application for approval of the Agreement on 18 March 2026 at which the UWU and Thrive representatives attended. Thrive sought and was granted permission to be represented by Ms Audrey Mills of Dobson Mitchell Allport pursuant to s 596(2) of the Act. Following the Mention, directions were issued on 18 March 2026 for the filing of material in relation to the UWU’s application for an extension of time for the filing of the application for approval of the Agreement. [4] In issuing the above-referred directions, the parties were advised that the matter would be determined on the papers in the absence of a request by either part for a hearing. As neither party sought to be further heard in relation to the extension of time application I will now proceed to determine that the extension of time application on the material before me. Background [5] Before proceeding to deal with the application, it is necessary to set out the background to the current application in some detail. [2026] FWC 1738 DECISION [2026] FWC 1738 2 [6] The Agreement was made on 5 June 2025 following which an application for approval of the Agreement was made on 10 June 2025 by Burles Consulting Pty Ltd on behalf of Thrive (the First Application). The application for approval of the Agreement was allocated to Millhouse DP (AG2025/1798). The UWU filed its Form F18 declaration on 17 June 2025 in which it raised concerns regarding classification matching for ‘Service Leaders’ provided by the Respondent in its Form F17 declaration, those concerns being relevant to the required better off overall test (BOOT) assessment of the Agreement. The concerns raised by the UWU in its F18 were pressed in proceedings before Millhouse DP but were rejected by the Deputy President when she approved the Agreement on 22 July 20251 (the First Application Approval Decision). [7] On 8 August 2025, the UWU filed a notice of appeal against the decision to approve the Agreement on the grounds that the BOOT was not satisfied in respect of the category of employee under the Agreement described as ‘Service Leaders’. On 16 January 2026, a Full Bench of the Commission quashed the decision (the Full Bench Decision) to approve the Agreement and remitted the application for approval of the Agreement back to Millhouse DP2. [8] On 17 February 2026, the Deputy President wrote to the parties and advised that having regard to the decision of the Full Bench, it was not in dispute that the Agreement did not pass the BOOT in respect of ‘Service Leaders’. As Thrive had declined to provide an undertaking to remedy that BOOT concern, she advised that she was considering making an amendment to the Agreement pursuant to s 191A of the Act to address the BOOT concern she held. [9] The specific concern held by the Deputy President was that the base rate of pay for Service Leaders in the Agreement was less than the corresponding base rate payable to the relevant Award classification under the Children’s Services Award 2010 Award3 (the Award). The Deputy President proposed to amend the Agreement to increase the rate of pay for ‘Service Leaders’ and issued directions setting out a timetable for Thrive, the UWU and employees to provide their views on the proposed amendment. [10] On 18 February 2026, Thrive filed a notice of appeal (C2026/2631) against the Deputy President’s correspondence of 17 February 2026 and sought a stay of the agreement approval application proceedings. In a decision issued on 23 February 20264, Colman DP refused Thrive’s stay application (the Stay Decision). [11] On 24 February 2026, Thrive notified Millhouse DP that it had failed to comply with her directions issued on 17 February 2026 and requested the directions be amended. Amended directions that accommodated Thrive’s request were issued on 24 February 2026. [12] On 2 March 2026, Thrive filed notices of discontinuance both in respect of the Agreement approval application (AG2025/1798) (the First Application Discontinuance) and its appeal matter (C2026/2631). [13] On 3 March 2026, the UWU filed its application for approval of the Agreement (the Second Application). Statutory provisions [2026] FWC 1738 3 [14] Section 185 of the Act deals with the requirement for a ‘bargaining representative’ to apply to the Fair Work Commission (the Commission) for approval of an enterprise agreement after it has been ‘made’ and specifies the time period within which an application must be made. In the case of an agreement that is not a greenfields agreement, the following is relevantly stated at s 185(3); “………………. When the application must be made (3) If the agreement is not a greenfields agreement, the application must be made: (a) within 14 days after the agreement is made; or (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows. …………..” [15] It is clear from the plain language of s 185(3) that granting of an extension of time for the filing of an application for approval of an enterprise agreement is a discretionary decision. In determining whether to exercise that discretion, the Commission is required to consider ‘all the circumstances’ in determining whether it is ‘fair’ to extend time. The use of the term ‘fair’ where it appears in s 185(3) stands in contrast to the more stringent test required to be applied in respect of other extension of time applications. See for example the test that applies in relation to unfair dismissal and general protections dismissal application, which require an ‘exceptional circumstances’ hurdle to be met in order to extend time for the filing of such applications. Consideration [16] Before proceeding to consider all of the circumstances in relation to the extension of time application in detail, it is useful to summarise the matters raised by the parties. [17] The UWU raises the following matters which it submits weigh in favour of a finding that it would be fair in all the circumstances to grant an extension of time; • the reason for the long delay in filing the Second Application is entirely explained by the timing of the withdrawal of the First Application by Thrive, following which the UWU promptly filed the Second Application; • Section 185(1) compels the UWU to make its application for approval of the Agreement; • the conduct of Thrive in withdrawing the First Application was in circumstances where the Commission was considering the amendment of the Agreement to address a BOOT concern it held; • granting an extension of time for the filing of the application would allow the Agreement to be considered and approved by the Commission, thus conferring the benefits and entitlements of the Agreement that operated between 29 July 2025 (First [2026] FWC 1738 4 Application Approval Decision) and 16 January 2026 when the Full Bench Decision quashed the approval decision; and • absent approval of the Agreement, there will be doubt as to the legal status of benefits received by employees under the Commonwealth’s Early Childhood Education and Care Worker Retention Payment Grant (WRP) between 29 July 2025 and 16 January 2026 and for the payments of the WRP between 2 December 2024 and 2026. [18] Thrive resist the UWU application and raise the following matters which they contend weigh against a finding that it would be fair in all the circumstances to grant an extension of time; • the Second Application was not accompanied by a valid Form F17B (the F17B), contrary to the requirement of s 185(1) & (2) of the Act and rule 32(3) of the Fair Work Rules (the FWC Rules), meaning the Second Application is not a valid application; • the First Application was validly discontinued; • the Agreement does not pass the BOOT against the Children Services Award 20105 (the Award), that BOOT deficiency being even more significant in the wake of amendments to the Award that took effect on 1 March 2026; and • the financial position of Thrive is such as to militate against the exercise of the Commission’s discretion to extend time for the filing of the Second Application, meaning that it would decline to proffer undertakings to remedy any BOOT concerns and would resist the use of s 191A by the Commission to amend the Agreement if an extension of time were granted; • the Second Application by the UWU is entirely speculative as it is premised on the Commission exercising its discretion to vary the Agreement to remedy any BOOT concerns if it were to grant an extension of time for the filing of the application; • no employees are disadvantaged as the rates and conditions provided by the Agreement are being passed on to staff; • contrary to UWU contentions, WRP payments are not at risk as Thrive has continued to pay the WRP, and has commenced a process to enter into IFAs with all staff, which the Commonwealth has advised Thrive is an acceptable means of maintaining the WRP entitlement; and • Thrive is willing to immediately recommence bargaining having regard to the significant changes to the Award that took effect from 1 March 2026. Whether Second Application is invalid because of the status of the Form F17B [19] When the UWU filed the Second Application, it included the Form F17B of Thrive that was filed with the First Application. Thrive contends that the F17B signed on 10 June 2025 that accompanied the First Application is invalid to the extent that UWU seeks to rely on it in respect [2026] FWC 1738 5 of the Second Application. That is because it was filed in relation to different proceedings before the Commission, that it was not authorised by it for the purpose of accompanying the Second Application, that there is no F17B responding to the Second Application and that it (Thrive) has no intention of filing a F17B in support of the Second Application. [20] The UWU reject that a F17B is required to accompany an application for approval of an enterprise agreement. It accepts that s 185(2) requires that an application must be accompanied by ‘any declarations that are required by the procedural rules…’ but rejects that rule 32(3) requires an application to be accompanied by an F17B declaration which it contrasts with rule 34(2) which relates to a greenfield agreement. While it accepts that rule 32(3) is a rule to be complied with by an employer, it argues that it is not an absolute requirement, as the Commission may dispense with compliance with any provisions of the Rules pursuant to Rule 7(1). Consequently, even if the F17B provided with the Second Application is said to be invalid, that does not render the application itself invalid. Finally, the UWU submit that if Thrive decline to provide a responsive F17B, it is open to the Commission to not require compliance with rule 32(3). [21] Section 185(2)(b) of the Act states as follows; “(2) The application must be accompanied by (a) a signed copy of the agreement; and (b) any declarations that are required by the procedural rules to accompany the application.” [22] Rule 32 of the FWC Rules deals with applications for an approval of enterprise agreements, and the required declarations that must accompany an application for approval of an enterprise agreement. It relevantly states the following at rule 32(3) in relation to required employer declarations; “(3) Each employer that is covered by the agreement must lodge a declaration by the employer, in support of the application for approval, with the FWC within 14 days after the day on which the agreement is made.” (emphasis added) [23] It is clear that s 185(2)(b) requires that an application for approval of an enterprise agreement must be accompanied by any declarations required by the FWC Rules. While the UWU contends otherwise, the Rules require the employer to file a declaration in support of the application. I do not accept the distinction the UWU draws between the requirement imposed on employers in respect of a greenfields agreements and an agreement that is not a greenfields agreement. The requirement in my view is the same. A declaration must be filed in support of an application for an agreement that is not a greenfields agreement. [24] Turning to the present matter, Thrive filed an F17B in support of the First Application. The question is whether that F17B can be relied on in support of the Second Application. The answer I believe is no. The requirement for a declaration is in respect of ‘the application.’ The application currently before the Commission is the Second Application for which no F17B has been filed in support of. I note that the UWU filed a fresh F18 in support of the Second [2026] FWC 1738 6 Application which is responsive to the matters dealt with by the Full Bench in its decision to quash the First Application Approval Decision. No such responsive F17B has been filed by Thrive. In those circumstances and given the matters raised by the Full Bench in quashing the First Application Approval Decision, the F17B filed with the First Application cannot be relied upon to support the Second Application. [25] A further matter that tells against reliance in the Second Application on the First Application’s F17B is that of the significant changes to the Award that took effect on 1 March 2026. This is dealt with at greater length below. None of those Award changes were contemplated, either in a BOOT or ‘genuine agreement’ context when the F17B was prepared in support of the First Application. This reinforces my conclusion that the Second Application was not accompanied by an employer declaration as required by s 185(2)(b) and rule 32(3). [26] Notwithstanding the absence of an accompanying F17B, I accept that it is open to the Commission to ‘dispense with compliance with any provision of the Rules, either before or after the occasion for compliance arises’ pursuant to rule 7(1) of the FWC Rules. Having regard to the particular history of this application and the related First Application, I have decided to exercise my discretion to dispense with the rule 32(3) requirement for the application to be accompanied by an employer declaration. [27] While I have dispensed with the requirement for the Second Application to be accompanied by an employer declaration, the absence of an F17B is a relevant matter to be taken into account in deciding whether it would be fair in all the circumstances to grant an extension of time for the Second Application to be filed. The lack of an F17B discloses a fundamental objection of Thrive to approval of the Agreement for the reasons that are considered at greater length below. The absence of an employer declaration may also compromise the ability of the Commission to be satisfied in respect of various mandatory statutory considerations, and in particular matters going to whether the Agreement was ‘genuinely agreed.’ I consequently regard the lack of an employer declaration to be a factor that weighs against a finding that it would be fair in all the circumstances to grant an extension of time. Reason for delay [28] As stated above, the Second Application was filed 257 days outside the 14-day filing period. While that is a significant filing delay, it can according to the UWU be entirely explained by the lengthy process associated with progression of the First Application, That process included the First Application Approval Decision on 22 July 2025, the quashing of that approval decision on 16 January 2026 in the Full Bench Decision, the Full Bench’s remittal of the First Application back to Millhouse DP which culminated in Thrive withdrawing the First Application on 2 March 2026. This followed Millhouse DP proposing to amend the Agreement under s 191A of the Act to address the BOOT concern identified by the Full Bench in its decision. The UWU immediately filed the Second Application on 3 March 2026 following Thrive’s withdrawal of the First Application. [29] In the above circumstances, I am satisfied that the 257-day filing delay is explained by the lengthy process associated with the First Application and that the Second Application filing [2026] FWC 1738 7 delay was not attributable to any tardiness or inaction on the part of the UWU. This weighs in favour of a finding that it would be fair in all the circumstances to grant an extension of time. Whether UWU compelled to make application under s 185(1) [30] The UWU also contends that s 185(1) of the Act ‘mandates’ that it was required as a bargaining representative to file the Second Application, that filing the application was not ‘optional’ and that it would be an ‘affront to the democratic expression of the employees (and UWU’s members)….if it were not able to go through the approval process.’ The UWU submit this weighs in favour of a finding that it would be fair in all the circumstances to grant an extension of time. [31] I disagree with the UWU’s submission that it was ‘mandated’ to file the Second Application. The requirement under s 185(1) was met when the First Application was filed by Burles Consulting on Thrive’s behalf on 10 June 2026. While the UWU is permitted to file the Second Application following the withdrawal of the First Application; there is nothing in the statute that supports the UWU’s contention, that it was compelled to make the Second Application. In these circumstances, this matter raised by the UWU is a neutral consideration. Conduct of Thrive in withdrawing the First Application [32] The UWU submit that the circumstances of the withdrawal of the First Application by Thrive when it was confronted with the proposed use of s 191A to vary the Agreement, is a matter that weighs in favour of an extension of time. It argues that the Respondent’s conduct was contrary to the scheme of approval contemplated by the Act, amounting to a unilateral decision about whether or not an amendment should be made. The UWU also relies on the reasoning of the Full Bench in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) v CJ Mansfield Pty Ltd6 (Mansfield). [33] In Mansfield, the Full Bench was considering two appeals, one of which was an appeal by the CEPU of a decision7 of Sams DP in which he declined to grant an extension of time for an agreement application lodged by the CEPU. The CEPU application for approval of an agreement made with CJ Mansfield followed the discontinuance of an earlier agreement approval application made by CJ Mansfield in respect of the same enterprise agreement. The Full Bench upheld the second ground of appeal; that, in declining to grant an extension of time, the Deputy President failed to have regard to all the relevant circumstances, and in particular the circumstances of the withdrawal by CJ Mansfield Pty Ltd of its application for approval of the agreement. The Full Bench went on to redetermine the extension of time application itself, granted the extension of time and remitted the agreement approval application to the panel head for reallocation and determination. In doing so, the Full Bench relevantly stated as follows; “[21] The Deputy President was required to exercise his discretion to extend the time limit for lodging the application for approval of the agreement. The discretion needed to have regard to all relevant circumstances. In our view the withdrawal of the application by CJ Manfield was a relevant consideration. In the circumstances it is a factor which strongly supports the granting of the extension because that is the only way the CEPU [2026] FWC 1738 8 could have sought approval of the agreement, and the delay is entirely explicable by the application made by CJ Manfield within time and its subsequent discontinuation.” [34] While I accept that Thrive’s withdrawal of the First Application is a relevant consideration, the circumstances of Thrive’s application withdrawal may be distinguished from those in Mansfield. In Mansfield, the circumstances were that CJ Mansfield made an application for approval of the agreement on 20 December 2010 and during a telephone hearing to deal with the application on 20 January 2011, sought to withdraw the application because of an error it had identified in the agreement. After further discussions between the CEPU and CJ Mansfield, the company filed an F50 Notice of Discontinuance on 24 February 2026. The withdrawal of the application by CJ Mansfield was made prior to determination of the agreement approval application. [35] The circumstances in the present matter before me are quite different. Thrive filed the First Application and engaged in the agreement approval process which initially resulted in approval of the Agreement. As set out above, Thrive’s withdrawal of the First Application followed the Full Bench Decision of 16 January 2026 that quashed the First Application Approval Decision, remitted the application back to Millhouse DP, who subsequently foreshadowed the potential use of s 191A to remedy the BOOT concern identified by the Full Bench. Thrive has set out in their material filed in this matter in some detail the reasons for its withdrawal of the First Application. It was, according to Thrive’s Chief Executive Officer (CEO) Mr Edward Beswick, for reasons of financial cost and sustainability of Thrive’s business. Mr Beswick states that the estimated additional cost of approximately $200,000 arising from the potential variation of the Agreement to increase salaries of Service Leaders, was carefully assessed in the context of an already challenging financial position: a forecast operating deficit of $270,000. This led to the decision to withdraw the First Application. [36] The UWU challenge the costings put forward by Thrive, claim they are overstated and estimate the increased cost of increasing Service Leader salaries to be approximately $178,468. The UWU also point out that Thrive declared positive financial results in the two prior financial years of an $801,765 surplus in 2023/24 and a $393,812 surplus in 2024/25. It is unnecessary for me to resolve the difference between the parties on the estimated cost impact of the increase in Service Leader salaries that may have flowed had Millhouse DP used s 191A to amend the Agreement. I do note however that the UWU did not seek to cross-examine Mr Beswick on his evidence on the reasons for withdrawal of the First Application despite both parties being afforded the right to be further heard in the matter. [37] I am satisfied that Thrive engaged in the Agreement approval process arising from the First Application. That clearly distinguishes the present circumstances from those dealt with in Mansfield. It has also advanced largely unchallenged evidence going to the reasons for its withdrawal of the First Application. Contrary to the UWU’s submission, the withdrawal of the First Application does not in my view appear to have been taken to deny employees the benefits of the Agreement that was made. That can be clearly seen in Mr Beswick’s unchallenged evidence that staff of Thrive are continuing to be paid in accordance with the Agreement despite the quashing of the First Application Approval Decision on 16 January 2026, a point not disputed by the UWU. That fact undermines the UWU’s attempt to impugn Thrive’s motives in withdrawing the First Application. [2026] FWC 1738 9 [38] The UWU submission that Thrive’s withdrawal of the First Application was contrary to the scheme of the Act in relation to agreement making, is also rejected. The Full Bench in Mansfield decisively rejected that the withdrawal of the agreement application in that matter was not permitted by the Act. The Full Bench relevantly stated as follows; “[13] The terms of s 588 are clear. In our view they permit the unilateral discontinuance of an application made in accordance with the applicable procedural rules. The application in this matter was made in accordance with such procedural rules being the form contained in the Fair Work Australia Rules 2009.’ [39] The Full Bench went on at [15] to state that there was no basis for applying s 185(1) to “read down the right to discontinue an application under s 588.” It is unclear to me how a right to discontinue an agreement application before the Commission could be contrary to the scheme of the Act as argued by the UWU. The Act specifically permits discontinuance of matters, which routinely occurs during the process of agreement approval. The fact that the UWU is aggrieved at the circumstances in which it occurred, does not render the discontinuance improper or contrary to the Act. [40] It is of course the case that Thrive were concerned at the prospect of the Agreement being amended by Millhouse DP pursuant to s 191A of the Act, to remedy the BOOT concern identified by the Full Bench. While such an outcome was not inevitable, it was a possibility that was sufficient to drive Thrive’s decision to withdraw the First Application. Unlike Mansfield, Thrive was not seeking to avoid the outcome of the Agreement that was made with its staff but were certainly seeking to avoid an outcome on which they had not negotiated. That avoidance does not of course relieve Thrive of its obligation under s 206 of the Act to ensure agreement rates of pay, are not less than the relevant Award rates of pay. I do note however that the classification structure in the Award has since been subject to significant change, and relevantly, included changes in respect of the Director classification that was the subject of Full bench consideration on appeal in the First Application. [41] All of the matters that I have considered above lead me to find that Thrive’s withdrawal of the First Application is a relevant matter that weighs in favour of a finding that it would be fair in all the circumstances to grant an extension of time. However, I attach limited weight to it in the particular circumstances of this matter. Specifically, Thrive engaged in the agreement approval process after it filed its First Application and I am satisfied that it did not withdraw the First Application to deprive employees of the benefits conferred by the Agreement made. In fact, those benefits continue to be provided to employees. Benefits and entitlements that Agreement would confer to employees [42] The Agreement operated from the date of its approval on 29 July 2025 until it was quashed by the Full Bench Decision on 16 January 2026. Approval of the Agreement, if an extension of time were granted allowing re-consideration of the Agreement would according to the UWU restore the benefits conferred by the Agreement. This according to the UWU weighs in favour of a finding that it would be fair in all the circumstances to grant an extension of time. [43] The point raised by the UWU would have some force if Thrive had ceased to pay in accordance with the rates provided under the Agreement after 16 January 2026. As Thrive has [2026] FWC 1738 10 continued to pay employees in accordance with the Agreement, employees have not been disadvantaged as a consequence of the quashing of the First Application Approval Decision. This matter is accordingly a neutral consideration. The WRP [44] The UWU contend that if the Agreement is not approved, it will leave open a question about the legal status of the WRP benefits employees received under the Agreement before it was quashed on 16 January 2026 and since. The UWU contend that a condition attaching to payment of the grant from the Commonwealth to operators in the early childhood education sector to fund the WRP payment, is that an industrial ‘instrument’ must be in place. The UWU further contends that if Thrive breach a condition of its grant agreement, the Commonwealth may require the return of funds. It consequently submits that if the Agreement is not approved, subject to an extension of time being granted for the application to be made, legal doubt exists as to the status of the payments received by Thrive and made to employees. This the UWU submit, weighs in favour of a finding that it would be fair in all the circumstances to grant an extension of time. [45] Mr Beswick gave the following evidence in relation to the WRP that was not subject to cross-examination or evidentiary challenge by the UWU; • no employee has been left out of pocket because of the Full Bench’s quashing of the First Application Approval Decision on 16 January 2026; • Thrive has paid the WRP to all eligible employees for the period the Agreement was in operation from 29 July 2026 to 16 January 2026 and for the backdating period from 2 December 2024 to 28 July 2025; • from 17 January 2026 to the present, Thrive has continued to pay employees the WRP notwithstanding Commonwealth funding to Thrive was paused on 23 January 2026 as a direct consequence of the Full Bench Decision on 16 January 2026; • Thrive contacted the responsible Commonwealth Department following the Full Bench Decision on 16 January 2026 and after receiving advice, have requested employees to complete an Individual Flexibility Agreement so that the WRP can be paid through that mechanism. [46] Beyond speculation as to the ‘open question’ about the WRP payments made to employees, there is no evidence that employees face the prospect of losing or having to repay WRP payments made to them. It appears that the risk is a financial one borne by Thrive following the Full Bench Decision and Thrive’s decision to continue paying eligible employees the WRP, despite pausing of the Commonwealth funding. There is no evidence that eligible employees have been or are likely to be disadvantaged by the quashing of the First Application Approval Decision on 16 January 2026. [47] Furthermore, it is entirely unclear what difference it would make to WRP funding of Thrive if the Agreement were ultimately approved at some point; as opposed to another negotiated agreement being made and subsequently approved. Both scenarios would ensure an [2026] FWC 1738 11 instrument was in place at some point in the future but neither scenario would result in an instrument operating in the intervening period since 16 January 2026. [48] Having regard to the above and the absence of demonstrable loss or risk to employees, the matter raised by the UWU is a neutral consideration in my assessment of whether it would be fair in all the circumstances to extend time for the filing of the Second Application. The BOOT [49] A contested issue that looms large in the positions of the parties over the UWUs extension of time application is that of the conduct of the BOOT if an extension of time was granted. While the relevant Award is not disputed, the UWU contend that if an extension of time were granted, the BOOT should be conducted by reference to the Award as it was prior to 1 March 2026, while Thrive contend that the BOOT should be conducted against the Award as varied with operative effect on 1 March 2026. The difference in positions of the parties is significant in circumstances where the Award was subject to significant changes in respect of the classification structure and wage rates from 1 March 2026. It is to be recalled that the Second Application was made on 3 March 2026. [50] There is no doubt that the changes made to the Award that took effect on 1 March 2026 would erect a higher hurdle for the Agreement to pass the BOOT. That point is implicit in the UWU’s position that the pre-1 March 2026 Award should be the reference point for the BOOT. The UWU’s position appears to proceed on the assumption that if the pre-1 March 2026 Award applies for the purpose of the BOOT, there is only one BOOT issue to be remedied: the Service Leader classification matching issue identified by the Full Bench, when it quashed Millhouse DP’s First Application Approval Decision. With respect, such an assumption, if held, is misplaced. That is because, wage increases were applied to the Award arising from the National Wage Case (NWC) Decision and took effect from the first full pay period after 3 July 20258, which was after the First Application was made. The BOOT impact of those wage increases was not considered by Millhouse DP when the First Application was before her, because ‘test time’ for the purpose of the BOOT was 10 June 2026. The UWU’s argument also appears to assume that I may not hold other BOOT concerns regarding the Agreement by reference to the pre-1 March 2026 Award beyond the Service Leader classification matching issue. [51] Taking the UWU’s position at its highest, it accepts there is a BOOT issue with the Agreement, even if the BOOT were to be conducted by reference to the pre-1 March 2026 Award. Having opposed approval of the Agreement before Millhouse DP and on appeal to the Full Bench, the UWU in a somewhat ironic twist, now seek approval of the very same Agreement through its Second Application. In doing so, it argues that the BOOT should be conducted against a lower standard than the Award as varied on 1 March 2026. I find that position in itself to be extraordinary and confess to not having previously confronted an argument from a union that a lower standard should be applied for the purposes of an Agreement being subject to the BOOT. Such an argument tells against a finding that it would be fair in all the circumstances to grant an extension of time. [52] It is apparent from the above that if the UWU’s contentions regarding the conduct of the BOOT against the pre-1 March Award were accepted, there is still at least one known and significant BOOT issue that would be a barrier to approval of the Agreement. This could only [2026] FWC 1738 12 be remedied by an undertaking or an amendment made to the Agreement pursuant to s 191A of the Act. Thrive has indicated in its submissions that it would decline to provide such an undertaking and would oppose any amendment being made to the Agreement pursuant to s 191A of the Act. In circumstances where the UWU’s Second Application is ultimately premised on a presumption or speculation that the Commission will amend the Agreement to remedy any BOOT concerns and where there is at least one significant and known BOOT issue, these are factors that tell against a finding that it would be fair in all the circumstances to grant an extension of time. [53] Turning now to Thrive’s contention that the BOOT should be conducted against the Award as varied on 1 March 2026, thus erecting a more significant BOOT hurdle for approval of the Agreement, the UWU reject Thrive’s contention for the following reasons. [54] The UWU contend that Section 165(3) and (5) of the Act have the effect of altering the date of operation of determinations made by the Commission to vary modern awards for particular employees. While the text of an award changes at the date a determination comes into operation; no entitlements or benefits are conferred on any particular employees until the start of their first full pay period, on or after the date of determination. The effect of which is to ensure that changes in award provisions are not to take effect in the middle of pay periods. [55] The Determination made on 10 December 20259, and subsequently corrected on 22 December 202510 and 20 January 202611 that varied the Award such that the changes came into operation from 1 March 2026 (the 1 March 2026 Determination), relevantly stated as follows; “B. This determination comes into operation on 1 March 2026. In accordance with ss 165(3) and 165(5) of the Fair Work Act 2009 (Cth), this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that start on or after 1 March 2026.” (emphasis added) [56] The UWU contend that as the BOOT test is to be conducted for “each award covered employee, and each reasonably foreseeable employee, for the agreement…” it is necessary in conducting the BOOT to take account of the date that a determination takes effect for the particular employees. In the case of Thrive’s employees, the Determination took effect from 4 March 2026, that being the start of the first full pay period after the date the Determination commenced operation on 1 March 2026. The UWU go on to contend that as the Determination to vary the Award took effect in respect of Thrive’s employees on 4 March 2026, and as the Second Application was made on 3 March 2026, the Award as varied by the Determination effectively post-dated the Second Application. The UWU contend that in conducting the ‘test time’ BOOT assessment, it must consequently be conducted against the pre-1 March Award. [57] I find the UWU’s arguments regarding the application of the BOOT to be unpersuasive. The effect of s 165(3) & (5) are, on the UWU’s own submissions, a means by which changes to an award do not come into effect mid pay-period. That does not go to the Award that covers an employee at ‘test time.’ In the present case, the Award that covered Thrive’s employees at ‘test time’ of 3 March 2026 was the Award as varied by the 1 March Determination. If it were otherwise, it would in my view lead to ridiculous outcomes. Take the following example. [2026] FWC 1738 13 [58] Two employers covered by the Award both filed applications for approval of enterprise agreements on 3 March 2026, such agreements being in the same substantive terms. Employer A’s first pay period on after 1 March 2026 commenced on 2 March 2026 while Employer B’s first full pay period on or after 1 March 2026 commenced on 6 March 2026. The UWU’s contended construction would result in different BOOT assessments being conducted against the pre-1 March 2026 Award in the case of Employer B and the 1 March 2026 Award in the case of employer A, simply by reason of a quirk in pay period commencement. [59] It would in my view be a plainly ridiculous outcome that the conduct of the BOOT is to be based on the vagaries of the start of a pay period, which in the above hypothetical example could lead to a situation where the agreement of Employer B is capable of approval having been assessed against a lower pre-1 March 2026 Award standard while Employer A’s agreement may not be capable of approval without undertakings or an amendment due to the BOOT being conducted against the higher 1 March 2026 Award standard. [60] It follows from the foregoing that I do not accept the UWU’s submission that the BOOT assessment must take into account the pay period of the relevant employees. Section 193(6) defines the ‘test time’ for the conduct of the BOOT as being the time of the application. The time of the Second Application was 3 March 2026. The BOOT is to be conducted against the Award as at that date. As the Determination commenced operation on 1 March 2026, it is the Award as varied at that date that is to be the reference point for the conduct of the BOOT. The UWU’s submission to the contrary is rejected. [61] I have found that the Award as varied with operative effect from 1 March 2026 is the relevant comparator for BOOT purposes. This is significant given that the changes to the Award were not merely cosmetic or inconsequential. The changes are substantial and have arisen from a Full Bench review of five modern awards (the Review), the Review having considered whether classifications in those awards had been subject to gender-based undervaluation. The Determination that took operative effect on 1 March 2026 finalised the Review in respect of classifications in the Award. Summarised simply, the Determination resulted in; “……. (1) A new and simplified wages and classification structure should be introduced substantially based on an alignment with the Caring Skills benchmark rate (then $1269.80 per week, now $1314.30) for a Certificate III-qualified CSE. Updated for the minimum wage rate adjustments made in the Annual Wage Review 2025….”12 [62] The changes to the classification structure involves the compression and translation of 30 existing classifications in the Award into 8 new CSE classifications. The Determination also provided for the first of several phased in wage rate increases which are to occur over a 2.5- year period and total in excess of 20% depending on classification level. [63] Having regard to the significance of the changes to the Award, both in terms of the classification structure and increases to wage rates, these are likely to raise both classification translation issues and BOOT issues that were not considered in the First Application. Changes to classification structure and wage rates are also likely to raise ‘genuine agreement’ issues. That is because the explanation of the terms of the Agreement provided to employees prior to [2026] FWC 1738 14 the Agreement approval ballot was by reference to both the 2013 Agreement that applies currently, and the Award as it was at the time in June 2025. A review of the explanatory material provided to employees prior to the ballot, reveals that the explanation of the classification structure was that the Agreement aligned its classifications with the Award. That is clearly no longer the case given changes to the Award that have operated since 1 March 2026. Given the passage of time, employees were clearly not given an explanation of the significant changes to the Award that commenced operation on 1 March 2026, when they originally approved the Agreement in June 2025. [64] The above highlights the agreement approval challenges that would confront the parties if an extension of time were granted. This weighs heavily against a finding that it would be fair in all the circumstances to extend time. My view is reinforced by the impact on employees. As previously stated, they are currently being paid in accordance with the Agreement. If an extension of time were granted and assuming for the sake of the discussion that the Agreement was able to be approved; the Agreement’s nominal expiry date would be four years from the date of approval, putting its expiry date at some time in 2030. While I accept that s 206 of the Act would ensure minimum rates in the Award were met during this period, employees would lose the opportunity until 2030 to re-negotiate an agreement based on the Award as varied from 1 March 2026. Reinforcing this point is the stated willingness of Thrive to immediately commence negotiation for a new agreement based on the 1 March 2026 Award. All of these circumstances weigh strongly against a finding that it would be fair in all the circumstances to grant extension of time for the Second Application. Financial position of Thrive [65] The financial impact of approval of the Agreement is raised by Thrive as a matter that tells against granting an extension of time. That argument is apparently pressed on the basis of the cost of remedying the Service Leader BOOT issue raised by the Full Bench, and on the assumption that the pre-1 March Award applies for the purpose of the BOOT. This argument is with respect misconceived. That is because I have found that it is the 1 March 2026 Award that would apply for the purposes of the BOOT. As earlier stated, the Award as varied from that date introduced significant classification structure changes and wage rate increases that Thrive will need to face into, whether in respect of the Second Application, or if as it has committed to doing, by entering into negotiations for a new agreement based on the 1 March 2026 Award. It follows that I am not persuaded that the financial cost impact is a relevant consideration. Recommencement of bargaining [66] As earlier stated, Thrive have committed to commencing negotiations for a new agreement having regard to the changes to the Award that operated from 1 March 2026. The parties would be able to negotiate an agreement that took full account of the significant changes made to the Award coming out of the Full Bench Review of gender-based undervaluation in the Award and other awards. This in my view would be the appropriate course of action and could only be of benefit to Thrive’s employees in circumstances where Thrive has continued paying rates in accordance with the Agreement notwithstanding the Full Bench’s 16 January decision to quash the First Application Approval Decision. This weighs against a finding that it would be fair in all the circumstances to grant extension of time for the Second Application [2026] FWC 1738 15 Summary [67] The UWU’s sound explanation for the filing delay and Thrive’s withdrawal of the First Application when confronted with the potential use of s 191A by Millhouse DP are both matters that weigh in favour of extending time for filing of the application. [68] Balanced against the above factors are a number of other circumstances that weigh decisively against granting an extension of time. Firstly, employees are not being currently disadvantaged and continue to receive rates of pay conferred by the Agreement as well as the WRP payments. Secondly, Thrive strongly resist approval of the Agreement, have declined to provide a supportive F17B, have made clear that they will decline to provide any undertakings and will also oppose the use of s 191A to remedy any BOOT concerns . Thirdly, the Agreement would need to be assessed against the 1 March 2026 Award which has been subject to significant changes in rates and the classification structure. This would likely raise further BOOT and genuine agreement concerns, if the Second Application were to proceed. Fourthly, Thrive has committed to immediately commence bargaining for a new agreement based on the Award as varied on 1 March 2026. All of these circumstances lead me to conclude that employees would be likely to derive a greater benefit from negotiation of a new agreement based on the 1 March 2026 Award than if the Second Application were to proceed. Conclusion [69] Having considered all the relevant matters above, I have determined that it would not be fair in all the circumstances to extend time for the filing of the application for approval of the Thrive Group Tasmania Enterprise Agreement 2025. The application of the UWU is consequently dismissed. DEPUTY PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR799994> 1 [2025] FWCA 2414 & [2025] FWC 2105 2 [2026] FWCFB 7 3 MA000120 4 [2026] FWC 577 5 MA000120 6 [2011] FWAFB 6845 7 [2011] FWA 3934 8 PR998020 9 PR794818 [2026] FWC 1738 16 10 PR794932 11 PR796954 12 [2025] FWCFB 283, at [1]