Recent Fair Work Commission (FWC) decisions have approved several applications from unions to initiate Supported Bargaining across groups of employers in industries such as early childhood education, fast food and disability services. These decisions mark a significant shift in collective bargaining practice in Australia, with implications that now extend beyond those sectors.
What is Supported Bargaining?
Supported Bargaining is a stream under the Fair Work Act that allows multiple employers, typically in the same industry or sector, to bargain collectively with employees and their representatives (usually unions), particularly where enterprise bargaining has historically been difficult or ineffective. It was introduced as part of the Secure Jobs, Better Pay Act 2022 reforms (Fair Work Legislation Amendment Act 2022).
Basically the FWC may approve a union’s application if:
- Employers have similar interests (e.g., small to medium sized businesses in the same sector);
- Bargaining is otherwise unlikely to occur; and
- It is in the public interest for bargaining to occur in this way.
Recent Developments
During 2024 and 2025, the FWC has increasingly approved supported bargaining applications across:
- Early Childhood Education and Care (ECEC) providers;
- Fast Food outlets (McDonalds South Australia); and
- Disability services providers.
This signals growing momentum for industry wide bargaining in sectors marked by fragmented employment arrangements, tight margins, and award reliance.
What Should Employers Be Doing Now?
1. Assess Whether You May Be Targeted or Affected
- Employers in similar industries or sharing key workforce characteristics (e.g., low union density, low bargaining history) may be approached by unions or named in applications with the Fair Work Commission.
- Review your current agreements, award coverage, types of work being performed, and any common interests with other employers to assess risk exposure.
2. Consider Specialist Employee Relations and Legal Advice Early
- Engaging Employee Relations or legal advisors to assess your bargaining strategy or whether you should apply to opt-out is critical. Opting out could include having an existing Enterprise Agreement in place or not being reasonably comparable to the other employers named in a group of employers submitted to the FWC.
- Early planning can reduce compliance risks and allow for better alignment with operational priorities.
3. Evaluate Workforce Relations and Union Engagement
- An active and transparent approach to workforce consultation is now more important than ever.
- Maintain open communication with employees and be proactive in addressing workplace concerns
- Even where union presence is minimal, proactive communication and understanding employee concerns can mitigate risk and support productive negotiations.
4. Stay Informed on Legislative and Case Law Updates
- Supported Bargaining is still developing in practice. Monitor key decisions and compliance obligations as the case law matures. For example, the FWC's recent approval in United Workers’ Union – Aged Care Bargaining Group (2024) provides precedent on public interest and operational similarity criteria.
5. Continue Genuine Enterprise Bargaining
- A proactive strategy to reduce the risk of being included in a Supported Bargaining Authorisation is to commence or continue genuine enterprise bargaining with your own employees and their representatives.
- The Fair Work Commission may refuse to include or retain an employer in Supported Bargaining if it can be shown that effective bargaining is already taking place at the enterprise level under section 243 of the Fair Work Act 2009 (Cth). Important to note that the Fair Work Commission can refuse to approve an agreement if it believes the employer is trying to circumvent supported bargaining.
If unable to exit the Supported Bargaining process then you should ;
- Plan to actively participate in bargaining to help shape terms.
- Collaborate with other employers or industry associations to strengthen bargaining power;
- Consider the use of experienced industrial relations consultants or legal representatives.
The expansion of Supported Bargaining has created a new dynamic in Australia’s industrial landscape. While the initial cases have largely focused on care based industries, the mechanism is now available across all sectors where the statutory criteria are met. Employers should act now to review their exposure, engage with stakeholders, and prepare for a potential shift from individual enterprise agreements to industry wide negotiations.
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References
Australian Government (2022) Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. https://www.legislation.gov.au
Fair Work Commission (2023) United Workers’ Union – Early Childhood Group Decision. https://www.fwc.gov.au/document-search/view/1/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZGVjaXNpb25zLzIwMjQvMDQvQjIwMjMtNTM4QXBwbGljYXRpb25ieVVXVUFFVWFuZElFVWRlY2lzaW9uMjdTZXB0ZW1iZXJSRUZJTEVENDI4Mjc3NzAyZDBiYjUyNS1iNmJiLTQzNjktODVlYS0xZWM4ZjhhMzQ0OWFhYTgwNDhiZS1hOTFkLTQ0YjktYmEyNy1mOGUxZDg1MGE3NzcucGRm0?sid=&q=united%24%24workers%24%24aged%24%24care%24%24s%24%24243
Fair Work Commission (2024) United Workers’ Union – Aged Care Bargaining Group Decision. https://www.fwc.gov.au
Fair Work Commission (2025) Health Services Union & Australian Education Union - Disability Services Decision https://www.fwc.gov.au/documents/sites/b2023-1235/2025fwcfb131.pdf
