Bulletin 25 - Intractable Bargaining Declaration - issued 7 September 2026
The Fair Work Commission (FWC) has issued an Intractable Bargaining Declaration in relation to negotiations for the Correctional Officers Enterprise Agreement.
As outlined in Bulletin 24, on 14 July 2026, I submitted an application for an intractable bargaining declaration under section 235 of the Fair Work Act 2009, requesting FWC to 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 was the only appropriate course of action given agreement with the UWU was not reached.
What is an intractable bargaining declaration?
An intractable bargaining declaration is made by the FWC when it determines that bargaining for a new enterprise agreement has reached a deadlock and the parties are unlikely to reach agreement without further assistance.
Why has an intractable bargaining declaration been made?
Enterprise agreement negotiations for correctional officers have been underway for approximately 14 months.
During this period:
- multiple bargaining meetings were held
- several offers were made
- employee ballots were conducted
- the parties participated in FWC-assisted conferences to resolve the dispute.
Despite these efforts, the parties were unable to reach an overall agreement on the terms of a new enterprise agreement.
As a result, I applied to the FWC to resolve the dispute through the intractable bargaining provisions.
On 4 September 2026, FWC issued an Intractable Bargaining Declaration, having found that there was no reasonable prospect of agreement being reached without the declaration.
What does this mean for employees?
The current enterprise agreement has passed its nominal expiry date but continues to operate until it is replaced by a new enterprise agreement or another legally binding industrial instrument.
The Intractable Bargaining Declaration brings an immediate end to all protected industrial action associated with this bargaining process. Employees, the UWU and the employer can no longer take, organise or participate in protected industrial action in support of bargaining while the declaration remains in force.
This means the protected industrial action associated with the bargaining campaign must cease, including:
- an unlimited number of indefinite or periodic bans on compliance with employer redirections of staff from their rostered positions to other positions
- an unlimited number of indefinite or periodic bans on the performance of work without a union hat being worn
- an unlimited number of indefinite or periodic bans on compliance with the employer’s policies preventing the wearing of work uniforms when not on official duty or travelling to or from work
- writing or attaching non-permanent/removable messages representing the concerns of NTCS staff regarding the enterprise agreement negotiations and process on employer vehicles or windows
- an unlimited number of stoppages of work for union delegates of up to one hour duration for the purposes of speaking to the media about the reasons for industrial action
- an unlimited number of stoppages of work of up to one hour duration for the purposes of attending rallies or demonstrations, whilst wearing work uniforms
- an unlimited number of stoppages of work of between one (1) minute and twenty-four (24) hours duration
- an unlimited number of stoppages of work of 12 hours duration
- an unlimited number of stoppages of work of 24 hours duration.
Employees are reminded that normal workplace policies and obligations continue to apply, including Employment Instruction 12 – Code of Conduct. Employees are expected to comply with requirements relating to professional conduct, public comment, engagement with the media and use of social media.
What happens next?
The FWC has provided a further opportunity for the parties to engage in discussions and attempt to resolve the outstanding matters in the post-declaration negotiation period, commencing 4 September 2026 and ending on 25 September 2026.
If agreement can be reached, the normal enterprise agreement approval process will continue.
If agreement is not reached, the matter will proceed to an Intractable Bargaining Workplace Determination (IBWD). An IBWD is a legally binding decision made by a Full Bench of the FWC that determines the terms and conditions of employment that would otherwise have formed part of the enterprise agreement.
It is important that employees understand that in making a workplace determination, the outcome will be decided by the FWC. No party can guarantee what the final terms will be and the determination may include terms that differ from the offers made by either party.
More information
Updates regarding the Correctional Officer Enterprise Agreement negotiations will continue to be published on the Correctional Officer (NTPS) Enterprise Agreement negotiations page.
Information on bargaining in general can be obtained on the Fair Work Commission website or call 1300 799 675 between 9am and 5pm (local time), Monday to Friday.
Johanna Stieber
Delegate for the Commissioner for Public Employment
7 September 2026