QUBE Intractable Bargaining update

As previously stated, the Fair Work internal benchmark for a decision is 12 weeks from the hearing date or last submissions. The RTBU has written to the Fair Work Commission seeking an update on the RTBU’s Intractable Bargaining Declaration on 3 March 2025 and 1 April 2025, but there has so far been no indication when a decision may be received. 

We understand it is extremely disappointing and frustrating for everyone concerned that we haven’t received a decision from the Fair Work Commission. It has now been 3 years since your last pay rise that you rightly deserve, and backpay, considering, 

1. The Intractable Application was filed in February 2024. 
2. Initial hearing held on 3 and 4 June 2024. 
3. Bargaining meetings supervised by Deputy President Saunders conducted between July and September 2024. 
4. Further hearing held on 7 November 2024. 
5. Additional supervised bargaining meeting conducted on 15 November 2024. 
6. Final brief written submissions, reporting on the 15 November 2024 meeting, filed on 24 December 2024. 

As soon as we receive a decision from the Fair Work Commission we will advise and set up Teams meetings to discuss the outcome. 

Class Action 

The RTBU has filed an application in the Federal Court to have the Underpayment Claim formally recognised as both a Union representational proceeding and a class action. Unsurprisingly, QUBE is opposing the application. 

As a result of QUBE’s opposition, the RTBU Legal Team will be travelling to Melbourne for a hearing on 9 May 2025 to argue the matter. 

Why pursue it as a class action? 

This claim involves a significant number of RTBU members who were affected by similar underpayment issues while employed by QUBE, so it is capable of being run as a class-action. 

Recent decisions in the Federal Court, and a key disposition of the High Court on 6 March 2025, have highlighted uncertainty around the sufficiency of union-led representative proceedings in securing 

compensation for all affected employees in relation to enterprise agreements that have been superseded. This arising from the wording in s539 of the Fair Work Act 2009. 

Whilst were confident the Court will resolve this issue of standing in the favour of the long-standing practice of recognising the validity of Union representational proceedings in recovering any and all underpayments, it is nonetheless prudent for the RTBU to pursue the claim as both a union representational proceeding and a class action to cover all bases. This strategy ensures that all members are properly covered, regardless of how the Court may ultimately interpret the relevant provisions. 

We will keep members updated following the outcome of the hearing in May. 

For members who want to understand the technical details of the issue, the decision of Justice Wheelahan in Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] 305 FCR 554 from paragraph 100 to 113 provides a breakdown of the arguments around s539. 

September Federal Court Underpayment Claim 

All directions and hearing dates remain the same as previously advised.

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