Bargaining for WA firefighters, and what is before the Commission now.

Industrial agreements and how they are registered

An industrial agreement is an agreement about industrial matters between a union and an employer (s 41(1)). When the parties apply for registration, the Commission "must register" it, subject to s 41(3), s 41A and s 49N (s 41(2)). Before it does, it may ask the parties to change the wording to give "clear expression to the true intention of the parties" (s 41(3)).

The Commission must not register an agreement unless it meets these conditions (s 41A):

(a) it specifies a nominal expiry date no later than 3 years after it comes into operation (s 41A(1)(a));

(b) it includes any terms the Commission has arbitrated under s 42G (s 41A(1)(b));

(c) it includes an estimate of the number of employees it will bind (s 41A(1)(c)). WES335 estimates 1,250 (cl 3(3));

(d) where a union is a party, the employees it binds are members of the union or eligible to be (s 41A(2)).

A registered agreement binds only the employer that is a party and employees in the callings it names (s 41(4)). Where it is inconsistent with an award, the agreement wins unless it says otherwise (s 41(9)).

Fair Work comparison: a federal enterprise agreement is put to a vote of the employees it covers and must pass the better off overall test before the Fair Work Commission approves it; in WA there is no employee vote in the Act and registration follows the parties' application.

Nominal expiry, and what happens after it

An agreement operates for the term it states (s 41(5)(b)). After that term ends, it "continues in force" for all parties, except any party that retires from it, until a new agreement or an award is made in its place (s 41(6)).

Retirement works by notice. At any time after expiry, or up to 30 days before, any party may file a notice of intention to retire; 30 days after filing, that party ceases to be a party (s 41(7)).

When a new agreement is registered, or an award or enterprise order is made, in place of the old agreement, the old agreement is taken to be cancelled except to the extent the new instrument keeps its terms (s 41(8)).

Fair Work comparison: a federal agreement also keeps operating after its nominal expiry date, but ending it takes an application to the Fair Work Commission, not a notice filed by one party.

Bargaining and the duty of good faith

Bargaining is dealt with in ss 42 to 42M, in Part II Division 2B of the IR Act (the division on industrial agreements). A union or an employer starts formal bargaining by written notice to the other intended party (s 42(1)). While an agreement is in force, the notice cannot be given earlier than 90 days before its nominal expiry date (s 42(5)). The other party has 21 days to say whether it will bargain (s 42A(1)).

Once bargaining has started, each negotiating party "must bargain in good faith" (s 42B(1)). Good faith includes (s 42B(2)):

(a) stating and explaining your position on the matters at issue;

(b) meeting at reasonable times, intervals and places for face-to-face bargaining;

(c) disclosing relevant and necessary information;

(d) acting honestly and openly, including "not capriciously adding or withdrawing items";

(e) recognising bargaining agents;

(f) giving union representatives reasonable facilities to do their job;

(g) "bargaining genuinely and dedicating sufficient resources to ensure this occurs";

(h) keeping to agreed outcomes and commitments.

Good faith does not require a party to agree to any term, or to make an agreement at all (s 42D).

The Commission may help the parties bargain, and may make orders to ensure they bargain in good faith, including an order that a party do, or not do, a particular thing (s 42E). But it cannot make a party enter an agreement or put a term in or take one out (s 42F), except where the parties have agreed some, but not all, of an agreement and jointly ask it to decide the rest (s 42G). Case example 3 below is an arbitration of that kind for firefighters.

Fair Work comparison: the Fair Work Act also sets good faith bargaining requirements and lets the Fair Work Commission make bargaining orders.

When the Commission declares that bargaining has ended

If bargaining stalls, a negotiating party can ask a single commissioner to declare that bargaining has ended. The commissioner may do so if satisfied that (s 42H(1)):

(a) the applicant has bargained in good faith;

(b) bargaining between the applicant and another negotiating party has failed; and

(c) there is no reasonable prospect of the parties reaching an agreement.

No appeal lies from the declaration (s 42H(2)). Bargaining between the parties named in it ends when it is made (s 42L(b)).

Fair Work comparison: the federal equivalent is an intractable bargaining declaration by the Fair Work Commission.

Enterprise orders: the Commission writes the terms

After a declaration, the negotiating party named in it may apply within 21 days for an enterprise order (s 42I(2)(a), (3)(a)). The Commission may then make an order (s 42I(1)):

(a) "providing for any matter that might otherwise be provided for in an industrial agreement" between those parties, "irrespective of the provisions of any award, order or industrial agreement already in force" (s 42I(1)(c)); and

(b) "that the Commission considers is fair and reasonable in all of the circumstances" (s 42I(1)(d)).

The Commission can keep trying to conciliate while the application is on foot (s 42I(4)).

Once made, an enterprise order:

(a) binds only the employer named in it and employees in the callings it names (s 42J(1));

(b) prevails over an award or industrial agreement where they conflict (s 42J(3));

(c) is enforceable in the Industrial Magistrates Court under s 83 as if it were an award (s 42J(4));

(d) must expire no more than 2 years after it comes into operation (s 42K(2));

(e) can be varied only if every party named in it consents (s 42K(3));

(f) continues in force after it expires until a new agreement, order or award replaces it (s 42K(7)).

How the Commission has approached enterprise orders in published decisions:

(a) the purpose: "In the end, an enterprise order is an order made to resolve a dispute" (Hanssen Pty Ltd v CFMEU [2004] WAIRC 10828 at [83], Full Bench; adopted in LGRCEU v Shire of Gingin [2026] WAIRC 00815 at [17]);

(b) the task: the Commission "stands in the shoes of the parties and constructs, in lieu of an industrial agreement, orders which are in the same terms as such agreement were it reached and contained fair and reasonable conditions" (Hanssen at [109]; Gingin at [6]);

(c) the benchmark: the words "might otherwise be provided for" point to "a hypothetical industrial agreement", not only the agreement the parties had before (Sealanes (1985) Pty Ltd v SDA [2005] WAIRC 03230 at [35]);

(d) the limit: an order may include only provisions about an industrial matter, or about preventing or resolving disputes over one (WAPU and CSA v Commissioner of Police [2017] WAIRC 00822 at [68]);

(e) the onus: "the party who seeks an enterprise order carries the burden of establishing that that order should be made and in the terms which it is sought the order be made" (Hanssen at [120], a submission the Full Bench accepted);

(f) no backdating: "there is no power under the Act for the retrospective operation of an enterprise order" (RTBU v Public Transport Authority [2011] WAIRC 00157 at [461]);

(g) the term: in that case the Commission gave the full two years because "a period of stability is important" (PTA at [355]).

Fair Work comparison: the federal equivalent is an intractable bargaining workplace determination, made by the Fair Work Commission after an intractable bargaining declaration.

What the Commission must take into account (s 26), including wages policy

Every time the Commission exercises its jurisdiction, it must (s 26(1)):

(a) act according to "equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms" (s 26(1)(a));

(b) not be bound by the rules of evidence (s 26(1)(b));

(c) have regard to the interests of the people immediately concerned and, where appropriate, "the interests of the community as a whole" (s 26(1)(c));

(d) take into consideration, so far as relevant, the national and WA economies, the employer's capacity to pay, the likely effect on employment and inflation, productivity, the efficient organisation of work "balanced with fairness to the employees", and the need to encourage agreements (s 26(1)(d)(i)–(vii)).

It must also tell the parties before relying on anything not raised at the hearing, and give them a chance to be heard on it (s 26(3)).

For a "public sector decision" there are three more factors (s 26(2A)). A public sector decision includes an enterprise order that will bind a public sector entity or its employing authority (s 26(2B), para (b) of the definition). The three factors are:

(a) any Public Sector Wages Policy Statement "that is applicable in relation to negotiations with the public sector entity" (s 26(2A)(a));

(b) the State's financial position and fiscal strategy, as set out in the most recent Government Financial Strategy Statement, the latest budget or mid-year financial projections, and any submissions for the entity or the State government (s 26(2A)(b), (2B));

(c) the entity's own financial position, as set out in its part of the budget papers and any submissions (s 26(2A)(c)).

These factors are "in addition to" the economic factors in s 26(1)(d) (s 26(2C)).

Why 2014 matters. Section 26(2A) to (2D) came in through the Workforce Reform Act 2014 (WA), No. 8 of 2014, s 4, which came into operation on 1 July 2014 (the amendment note to s 26 and the compilation table in the IR Act). The wages policy the Act names is the Public Sector Wages Policy Statement 2014, applying to agreements expiring after 1 November 2013, or any statement issued in its place (s 26(2B), definition of Public Sector Wages Policy Statement). The new factors do not apply to a s 42G order for an agreement replacing one with a nominal expiry date before 1 November 2013, or to an enterprise order replacing an enterprise order that expired before that date (s 26(2D)).

Before 2014, the Commission had said the Government's wages policy "has no particular status before the Commission" (PTA, February 2011, at [357]), and that the "inflexible application of a policy or rule" would not resolve that dispute (at [389]). Decisions since 2014 have looked at the new factors this way:

(a) the Act "does not make s 26(2A) a standard against which the other considerations are to be assessed. Nor is s 26(2A) of greater weight than those matters in s 26(1)(d)" (Minister for Health v HSU [2015] WAIRC 00332 at [123], a s 42G arbitration);

(b) in the same decision, arbitrated increases greater than projected CPI "should be the exception rather than the rule" in the fiscal conditions the State then faced (HSU at [136]);

(c) in the 2017 Police enterprise order, the commissioner took the view "for the time being" that the s 26(2A) matters "only need to be considered if I am otherwise satisfied that a provision has merit", and need carry no weight if a provision's cost "is nominal only" (Police at [78]).

Fair Work comparison: the Fair Work Commission weighs its own list of statutory factors when it makes a workplace determination, but the Fair Work Act does not tell it to consider a State government's wages policy.

Compulsory conferences and s 44 orders

Section 44 is the Commission's everyday tool for disputes. A commissioner may summon parties to a compulsory conference (s 44(1)), on the application of a union, association or employer, or of the Minister, or on the Commission's own motion "whenever industrial action has occurred or, in the opinion of the Commission, is likely to occur" (s 44(7)).

At or in relation to the conference, the Commission may, on industrial matters, give directions and make orders that in its opinion will (s 44(6)(ba)):

(a) "prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter" (s 44(6)(ba)(i));

(b) "enable conciliation or arbitration to resolve the matter in question" (s 44(6)(ba)(ii)); or

(c) encourage the parties to exchange attitudes or information that would help resolve it (s 44(6)(ba)(iii)).

It may also give any direction or order it is otherwise authorised to make under the Act (s 44(6)(bb)(i)). These orders bind only the parties to the conference, and may vary the operation of an existing award or agreement for them (s 44(6a)).

The Full Bench has said interim injunction principles from the courts should not be applied to s 44(6)(ba) orders, and that those orders "are not confined to making orders to maintain the status quo" (Director General, Department of Education v SSTUWA [2011] WAIRC 00058 at [57]–[58]).

If the parties reach agreement at the conference, the Commission may make an order in its terms binding the parties who consented (s 44(8)(a)). If they do not, it may hear and determine the matter, which is arbitration (s 44(9)).

Fair Work comparison: the Fair Work Commission deals with disputes under an agreement's dispute clause, and can arbitrate where the clause allows it; the WA power to make interim orders that vary how an agreement operates for the parties is wider.

Section 46: what an agreement means

A party bound by an award or agreement may ask the Commission to "declare the true interpretation" of it, and to vary a provision to remedy a defect or give fuller effect to it (s 46(1)). For this section, "award" includes an industrial agreement (s 46(5)). A declaration is "binding on all courts and all persons" on the matter it decides (s 46(3)).

Fair Work comparison: federally, what an agreement means is usually settled in a dispute under its dispute clause, or by a court in an enforcement case.

Section 83: enforcement and penalties in the Industrial Magistrates Court

If a person contravenes an "entitlement provision" of an award, agreement or order, a union named as a party, an employer bound by it, an employee it applies to, an industrial inspector or the Registrar may apply to an industrial magistrate's court to enforce it (s 83(1)). A person "involved in" a contravention is taken to contravene it (s 83(2), (2A)).

The maximum penalties are (s 83(4A)):

If a contravention is proved, the court may also make an order "for the purpose of preventing any further contravention" (s 83(5)), and may make an interim order of that kind before the final hearing (s 83(7)). It must order an underpaid employee to be paid, generally for up to 6 years before the proceedings began (s 83A).

Fair Work comparison: a breach of a federal enterprise agreement is enforced by civil penalty proceedings in the Federal Court or the Federal Circuit and Family Court.

Industrial action, and how bans are dealt with

"Industrial action" is defined widely. It means any act, omission or circumstance by a union, an employer, an employee or anyone else for the purpose, "or in the opinion of the Commission for the purpose", of compelling acceptance of terms or conditions of employment or enforcing a demand about employment, not including an application made under the Act (s 7(1), definition of industrial action).

The IR Act has no scheme of "protected" industrial action. Three provisions bear on bans:

(a) good faith: the Commission may, having regard to the circumstances, determine that engaging in industrial action is a breach of the duty to bargain in good faith (s 42B(3)), and good faith is the first condition for a declaration that bargaining has ended (s 42H(1)(a));

(b) s 44 orders: an employer facing bans usually asks for a compulsory conference and an order under s 44(6)(ba) that the union direct members to stop. Case examples 1 and 2 below are orders of this kind;

(c) enforcement of an order: if a s 44 order is not complied with, the Registrar, at the Commission's direction, may apply to the Full Bench (s 84A(1)(b)). If the breach is proved, the Full Bench may accept an undertaking, issue a caution or impose a penalty of up to $13,000, or direct the Registrar to issue a summons under s 73(1) (s 84A(5)(a)).

A s 73(1) summons requires a union to appear before the Commission in Court Session and "show cause why the registration of the organisation under this Act should not be cancelled or suspended" (s 73(1)). A commissioner must direct a summons if the Minister asks and declares that the safety, health or welfare of the community or part of it is at risk (s 73(3)(a)).

The agreement itself records both sides of this: the union recognises DFES's "statutory and public responsibility to the public of Western Australia", and DFES recognises the union's "right to take appropriate measures to protect and improve the working conditions and remuneration of its members" (WES335 cl 11(1)).

Fair Work comparison: the Fair Work Act allows protected industrial action during bargaining after a secret ballot and notice, and the Fair Work Commission can stop unprotected action or suspend protected action that threatens life or safety; WA has no protected window at all.

The enterprise order application (APPL 22 of 2026)

The union has applied under s 42I for an enterprise order to replace WES335. The union is the applicant and DFES is the respondent. The application is before Senior Commissioner R Cosentino ([2026] WAIRC 00756).

How it got here, from the published decisions:

The December 2025 consent order. In C 29 of 2025, the Commission ordered by consent that ([2025] WAIRC 00984):

(a) the union lift the 13 bans listed in DFES's amended application, "effective until 9 June 2026" (order 1), and take no new industrial action or bans in pursuit of bargaining before 9 June 2026 (order 2);

(b) the union tell members that, "except for the remaining bans", conditions had returned to business as usual (order 3);

(c) in exchange, DFES make an "administrative payment" made up of a "5% annual increase calculated from Friday, 12 December 2025" and an annualised wage adjustment increasing the penalty factor "from 40.074% to 46.06%", also from 12 December 2025 (order 5);

(d) the administrative payment "will offset any future wage increases that may be agreed to or arbitrated" (order 6), and the payment in "Order 6 above" (as the order is worded) be paid no later than 26 January 2026 (order 7).

The declaration that bargaining ended. The declaration records the s 42H test and the Commission's satisfaction on each limb: the union had bargained in good faith, bargaining had failed, and there was no reasonable prospect of agreement. It records that DFES had said its 1 October 2025 offer "represented the maximum financial parameters that it was willing to provide", and that the Commission considered a statement of agreed facts and bundle of documents filed on 11 March 2026 ([2026] WAIRC 00142).

How the issues are being set out. The Commission directed the parties to build an "Enterprise Order Clause Register" with five columns: "Clause", "Sub-clause", "Matter and Intent", "UPFU Grounds" and "DFES Response". The grounds column is to give the source of each term sought: a clause of the current instrument, another industrial instrument, or "custom or practice", so that DFES can "easily identify if a claimed term or condition is new" ([2026] WAIRC 00330). Under the revised dates, the union's columns were due by 29 June 2026 and DFES's response by 27 July 2026 ([2026] WAIRC 00390, directions 1, 2). The register and the draft order are not published.

What the Commission will decide. If the matter goes to trial, the Commission will decide whether to make an enterprise order and, if it does, which terms are "fair and reasonable in all of the circumstances" (s 42I(1)(c)–(d)). It must apply s 26(1). Because DFES is a State government department, the extra public sector factors in s 26(2A) apply to an enterprise order binding it (s 26(2B)). The parties can still reach agreement, and the Commission can keep conciliating, while the application is on foot (s 42I(4)).

When. No trial date has been set. The published timetable is ([2026] WAIRC 00756, made by consent on 29 July 2026):

No contested ruling had been published in APPL 22 of 2026 when the Commission's decisions list was checked on 1 November 2026.

The Built Environment Branch restructure

DFES has restructured its Built Environment Branch (BEB). The Building Fire Safety Officer and Senior Building Fire Safety Officer positions were abolished on 29 July 2026 ([2026] WAIRC 00891 at [31]). Building Fire Safety Officer classifications and a career pathway for them are set out in WES335 (cl 12(5)). The union says the restructure breached the agreement, and there are three proceedings. The union is the applicant or claimant in each.

Clause 8 of WES335 is headed "No Further Claims". The parties undertook that "for the duration of the Agreement" no further wage increases would be sought or granted beyond those in it (cl 8(1)), and "for the term of this Agreement" there would be no further claims on matters in it except where specifically provided (cl 8(2)).

The interim decision in M 122 of 2026. The union asked the Court, until the claim is decided, to require DFES to revert the BEB to its structure before the dispute was raised on 2 April 2026, and to restrain DFES from changing it ([2026] WAIRC 00891 at [2]). The claim relies on cl 11(5) of WES335, which says that while the dispute procedure is being followed, "work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring" (cl 11(5)). The Magistrate's reasons, given at the end of the hearing, were:

(a) the power: an interim order under s 83(7) must be an order under s 83(5), that is, for the purpose of preventing a further contravention; the Court adopted the Full Bench's reasoning that s 83 "is not a power at large to resolve disputes between parties" ([2026] WAIRC 00891 at [33]–[35], adopting North Metropolitan TAFE v SSTUWA [2018] WAIRC 00746);

(b) the clause: cl 11(5) "does not require the 'status quo' to be maintained but requires the continuation of work in accordance with the existing practice immediately before the dispute", and the statement of claim did not plead what work had not continued ([66]); "the act of restructure is not, of itself, a contravention of cl 11(5)" ([67]);

(c) the claim as it was then pleaded: the Court found it did not identify precisely enough what work had not continued in accordance with the existing practice, which weighed against interim orders ([66], [68]);

(d) the orders sought: an order reverting the restructure is "directed to restoring the position that existed before the restructuring occurred", not to preventing a further contravention ([78]), so there was no prima facie case that the orders sought had the required purpose ([79]);

(e) the balance of convenience, which the Court found against the orders ([84]), for reasons including: the evidence did not rise above a possibility that two employees might lose their jobs ([84(a)]); "considerable doubt" about the Court's power to make the orders ([84(c)]–[84(d)]); a possible detrimental effect on employees already appointed to new positions ([84(e)]); and that the dispute is before the Commission, which has its own powers under s 44(6)(ba)(i) ([84(h)]).

The application for interim orders was dismissed ([85]). That was a ruling on an interim application only. The Court has not decided the claim, and the Commission has not decided the s 46 application on what cl 8 and cl 12(5) mean. A s 46 declaration, when made, binds all courts and persons on the matter it decides (s 46(3)).

The union posted a circular titled "Abolition of Senior Building Fire Safety Officer Positions" on its website on 22 October 2026 (members only) (union circulars).

Crewing and appliances on restricted duties

The crewing issue reached the Commission in October 2025, when DFES sought s 44 orders lifting a union ban on crewing appliances under the "Appliance on Restricted Duties" (AORD) procedure (C 28 of 2025; [2025] WAIRC 00866). Case example 2 below tells that story. The public record says this about the practice and the agreements behind it:

(a) the DFES procedure: where no call-back is available to fill a shortage and minimum crew levels cannot be kept, DFES's Standing Administrative Procedure 5.01.A (version 3.1, May 2024) lists hold back or stand down, AORD ("DC approval required"), and appliance stand-down pending staff availability. An AORD appliance with a Station Officer vacancy "Will respond only under non-emergency conditions and if direct supervision is guaranteed at the incident scene"; with a firefighter vacancy it is "Deployable as secondary resource under non-emergency driving conditions" ([2025] WAIRC 00866, dispute resolution recital 14);

(b) its history: a version of that procedure has referred to an "Appliance on Restricted Duty" since 2011, and the union "has not been consulted on the most recent version" (recital 15);

(c) the 2016 Guidelines: as the Commission recorded the union's case, the union and DFES have had since 2016 an agreement known as the Relief and Transfer Guidelines Firefighter and Station Officer Rank Employees 2016, whose Annex C, "Station Profile", sets a "Minimum Crew Profile (due to unknown events)" and a "Preferred Crew Profile (a selection process)". The union claims AORD undermines the minimum staffing levels agreed between the parties (AORD dispute recital 6);

(d) common ground: "Both parties agree that the frequency of the use of AORD has increased over time and prior to the commencement of the industrial bans", though "they disagree on the reasons for this increase" (AORD dispute recital 5);

(e) what was not decided: the order "does not reflect a determination of the issue of whether the use of AORD is permitted under the agreed minimum staffing levels and whether the use of AORD is a safe practice".

The order ran until 9 December 2025 (order 5) and was extended to 11 December 2025 ([2025] WAIRC 00965). No later published decision on AORD was found.

Superannuation and the emergency services legislation

Superannuation. Career firefighters' superannuation is under the Fire and Emergency Services Superannuation Act 1985 (WA). On 12 October 2026 the union posted a circular titled "FES Superannuation Reform WA Labor Delivers First Stage of Election Commitment" (Circular 83 of 2026, members only). We have not found a published Bill or government statement on the reform, so this page says nothing about its content. Our superannuation page will cover it when there is a public source.

The emergency services legislation. DFES's legislation page says State Cabinet has approved consolidating the Fire Brigades Act 1942 (WA), the Bush Fires Act 1954 (WA) and the Fire and Emergency Services Act 1998 (WA) into one Act, and that the existing Acts "will be repealed and replaced with one comprehensive piece of legislation" (DFES, Legislation, read 1 November 2026). On that page:

(a) drafting instructions approved by Cabinet have been provided to the Parliamentary Counsel's Office to draft an Emergency Services Consultation Exposure Draft Bill;

(b) the exposure draft is "In Progress", and public consultation is "Planned", to follow its release;

(c) "It may take several years to develop the new emergency services Act and the supporting regulations";

(d) while the draft is being prepared, DFES "is unable to share detailed information about the contents of the legislation or its progress".