Bulletin 24 - Intractable Bargaining Declaration - issued 27 July 2026
On Friday 24 July 2026, I submitted an application for an Intractable Bargaining Declaration, under section 235 of the Fair Work Act 2009, requesting the Fair Work Commission (FWC) intervene due to stalled enterprise agreement negotiations. This is consistent with my earlier advice to the workforce and the United Workers Union (UWU) in the lead up to, and post the last Enterprise Agreement ballot.
Proceeding to the intractable bargaining provisions was not our preference, but the only appropriate course of action now given agreement with the UWU was not reached.
What is a s235 Intractable Bargaining Declaration?
Under the Fair Work Act 2009, either party can request the FWC make an intractable bargaining declaration which will be issued if the FWC is satisfied:
- the dispute has been dealt with under s240 of the Fair Work Act;
- there is no reasonable prospect of agreement being reached without the declaration; and
- it is reasonable in all circumstances to make the declaration.
The declaration would acknowledge that the parties are in dispute about the Enterprise Agreement, and if this cannot be resolved, the FWC will determine the terms and conditions of employment, which will be final and binding. These terms and conditions of employment may differ from the final offer made following the s240 process.
Next steps
Whilst I must await direction from the FWC to provide further updates, my Office is satisfied that all reasonable steps were taken to settle these negotiations, including bargaining in good faith and participating in and accepting in full the recommendations of the FWC during the s240 proceedings, and that this is a necessary step to resolve these negotiations.
More information
If you have any questions regarding the s235 application or bargaining to date, please contact enquiries.ocpe@nt.gov.au.
Nicole Hurwood
Commissioner for Public Employment
27 July 2026