The FWC makes its second intractable bargaining workplace determination

Since June 2023, the Fair Work Commission (FWC) has had the power to resolve an intractable bargaining dispute by making an intractable bargaining workplace determination (IBWD) to resolve any matters that have not been agreed by the parties.

The FWC has recently made the second IBWD under these new laws in Transgrid (2025) (the first was the Cleanaway ruling).

In this decision, the IBWD resolved disputed bargaining claims for an enterprise agreement covering an employer in the electricity power transmission industry. The employer had been bargaining with five unions for nearly 2 years to replace an enterprise agreement that expired on 1 December 2023.

Over the course of 10 months, the parties bargained over wage and superannuation increases that should apply for a 3-year agreement. This is summarised below:

Increase	Unions’ opening claim – 25.8.23	Employer’s counter – 26.9.23	Unions’ counter –26.9.23	Employer’s counter – 24.10.23	Employer’s further offer made at FWC conference – 11.3.24	Union’s counter –4.4.24	Employer’s final offer –18.7.24
Wage	8% + 8% + 8%	5% + 3% + 3%	6% + 5% + 5%	5% + 3.5% + 3.5%	5% + 4% + 4%	6.5% + 6.5% + 6.5%	5% + 4% + 4% +$1,500 sign-on
Superannuation	2% + 0.5% + 0.5%	Nil	2% + 0.5% + 0.5%	Nil + 0.5% + 0.5%	Nil + 0.5% + 0.5%	Nil + 0.5% + 0.5%	Nil + 0.5% + 0.5%

In the meantime, the employer unsuccessfully submitted the proposed agreement for employee approval on two occasions: December 2023 and April 2024.

The unions organised protected industrial action on and from January 2024.

The FWC intervened in the dispute by:

scheduling conciliation conferences of the parties;
dealing with a union application in relation to an alleged breach of good faith bargaining principles by the employer by not furnishing the unions with relevant information; and
suspending the protected industrial action for 3 weeks in July/August 2024.

After a 5-day hearing with several witnesses in December 2024, the FWC issued the following determination for a 2-year period in April 2025:

Increase	1.3.24	1.3.25	1.3.26
Wage	6.5%	5.5%	4.5%
Superannuation	Nil	0.5%	0.5%

The FWC considered it had the power to determine that the first pay increase have retrospective effect.

The FWC rejected the unions' bid for all overtime on Saturdays to be paid at double-time (the existing agreement allowed for time-and-a-half for the first 2 hours before midday). The FWC also in effect split the difference between the unions’ claim for the nominal expiry date of 1.12.26 and the employer’s claim for 30.6.28 by stipulating a date of 1.3.27.

The FWC rejected the employer’s argument that it could not fund wage increases because the electricity regulatory framework prevented it from reducing returns to shareholders. The FWC observed it must balance the employer’s interests and those of its shareholders in deriving the greatest profit possible with the interests of employees in maintaining the real value of their wages and receiving fair and appropriate wages.

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