//
[2026] FWC 1185
General information, not legal advice.
Fair Work Commission
2026-04-08
Original judgment source is linked above.
s.236 - Majority support determination
Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Application for majority support determination - application opposed - Applicant fails to satisfy s.237(2)(a) - application dismissed.
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU") has made an application to the Fair Work Commission (FWC) under s.236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination (MSD) for various employees of BHP WAIO Pty Ltd and BHP Iron Ore Pty Ltd (collectively "BHP").
[2] The employees named in the originating application are as follows:
[3] The application is opposed by BHP on the grounds that the group of employees was not fairly chosen and that the FWC cannot be satisfied that a majority of employees wish to bargain due to issues with the integrity and validity of the petition used by the CEPU.
[4] As the matter could not be resolved during conciliation, it was listed for hearing. Both parties sought leave to be represented, and both made submissions addressing s.596(2) of the Act. I was persuaded by the submissions of both parties with respect to s.596(2)(a) and the complexity of the matter. As such, I granted permission for both parties to be represented.
[5] Section 237 of the Act deals with making majority support determinations and relevantly states as follows:
"(1) The FWC must make a majority support determination in relation to a proposed single - enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(a) a majority of the employees:
(c) the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3A) If the agreement will not cover all of the employees of the employer of employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct."
[6] As can be seen, BHP's objections stem from s.237(2)(a) and (c) and it provided extensive submissions addressing these issues. At hearing, it also indicated that it did not believe that the condition in s.237(2)(d) had been met, arguing that it was not reasonable in all of the circumstances to make the MSD. I note for completeness that it was not contested that an application had been made by the CEPU as a bargaining representative and that BHP had not agreed to bargain. As such I am satisfied that the conditions in s.237(1)(a) and s.237(2)(b) have been met. I will now set out my consideration of the matters in ss.237(2)(a), (c) and (d).
Section 237(2)(a) Do the majority of employees want to bargain?
[7] Upon receipt of the originating application from the CEPU, I directed that the union provide me with the names of the employees who had indicated support for its petition, and that BHP provide me with a list of employees within the group identified by the CEPU. Both parties complied with these directions and on 29 October 2025 I made a comparison of the information provided. From that information it emerged that the CEPU had 29 employees in favour of bargaining who appeared on the BHP list of 50 employees. As such, I advised the parties that the CEPU had demonstrated majority support for bargaining within the group that it had identified.
[8] With respect to the time to be determined for the purposes of s.237(2)(a)(i) of the Act, I note the findings of Deputy President Binet in AWU v Woodside Energy Ltd. In that matter the Deputy President stated in support of adopting for the purposes of s.237(2)(a)(i), the day the union involved finished collecting petitions as follows (citations removed):
"In CEPU v South32 Deputy President Beaumont followed the decisions in both Kantfield Pty Ltd v AWU and National Union of Workers v Lovisa Pty Ltd and determined that the time for the employee cohort to be fixed was the date when the union 'ceased garnering signed petitions'."[2]
[9] Adopting this reasoning, I will use 26 August 2025 as the time for determining the employee cohort.
[10] In its submissions, the CEPU described its petition as follows:
"The CEPU ran a typical petition from 25 July to 26 August 2025. Employees were invited by email to complete the petition. The petition was managed conventionally through an online platform that permitted employees to answer prescribed questions. 32 completed the petition and when asked whether they understood the purpose of the petition was to confirm that they wanted to bargain with BHP for an enterprise agreement, all employees accepted."[3]
[11] The CEPU further submitted that given what it estimated to be the group size - being 43 employees - it had clearly achieved a majority of around 75 percent. I note that as stated above the actual group size was 50. Further, of the 32 employees who completed the petition, two did not appear on the BHP list and a third appeared twice on the CEPU list meaning the actual number of employees supporting bargaining was 29, representing 58 percent support.
[12] There were no further written submissions from the CEPU on the issue of majority support. Evidence was given on behalf of the CEPU by Mr Mark McDonald and Mr Stephen Rae, who are both employed by BHP as signal technicians, and Mr Brant Softley, who is lead organiser for the CEPU. None of the witnesses were cross-examined. Neither Mr McDonald nor Mr Rae made any mention of the petition or the process of its collection in their witness evidence.
[13] In his evidence, Mr Softley explained that he had been organising employees at the relevant BHP locations for approximately two years and that these employees had expressed a desire to have their employment covered by an enterprise agreement. Given this, he had begun the process of seeking an MSD as follows:
"On 25 July 2025 I sent an email to the workers explaining that we needed to do a contemporary petition in order to make an application for a majority support determination...(i)n the email...the workers were provided a link which upon entering their email address allowed them to fill in a petition expressing support for an MSD. The petition asked them several questions which then populated an excel spreadsheet...(w)e received responses from 25 July 2025 through to 26 August 2025 at which time we closed the petition."[4]
[14] The email and spreadsheet referred to in Mr Softley's evidence were included as annexures to his witness statement albeit that the spreadsheet had been redacted by the removal of all personal information. The email reminded CEPU members and those on Mr Softley's contact list that the CEPU had previously sought an MSD for the employees in the group but had been advised by their legal counsel that they needed to update the petition. The email advised members to use their personal email addresses when seeking to complete the petition and contained a reminder as follows:
"Reminder this petition is to be completed by a minimum Trade Cert 3 qualified tradespersons in Signals."[5]
[15] The email then advised that the link could be shared with new employees and that the sooner the CEPU got the numbers, the sooner it could once again approach the FWC. In his reply witness statement, Mr Softley confirmed that this email had been sent to a separate group of closed contacts that contained only employees who were signal technicians who would be covered by the proposed agreement. He says in that statement:
"The group made very clear to me that they saw their work and their skills as being distinct from the rest of the BHP rail workers and wanted this reflected in an agreement.
The July 2025 email was sent only to the signal technicians, and I made clear that the petition was only for tradespersons working in signals. I was in constant contact with my members during this period and there was no confusion as to what we were trying to achieve; an enterprise agreement for the signal technicians. This is what my members working in that area directed me to do and it was led by the workers themselves."[6]
[16] The spreadsheet contained columns for what I would regard as standard demographic information such as name, email address, union membership number and so forth, but also a final column headed as follows:
"I understand the purpose of this digital petition is to confirm that I want to bargain with my employer for an enterprise agreement."[7]
[17] It is my understanding that, by agreeing with this last statement, an employee was regarded as indicating their wish to bargain.
[18] In its submissions, BHP proposes that where a party is invoking majority support, it should bear the evidentiary onus to establish such support. In making this proposal, BHP relied on the findings in Village Cinemas Australia Pty Ltd v Carter [2007] AIRCFB 35 [40]; Technical and Further Education Commission T/A TAFE NSW v L. Pykett [2014] FWCFB 714 [36]; Coal & Allied Operations Pty Ltd v AMWU (1997) 73 IR 311 (Coal and Allied), 317.
[19] BHP submits - uncontroversially - that the FWC must make a determination of the group to be covered, which is drawn from the application, and then needs to determine which employees made up that group at the relevant time. Where the method of determining the employee view is as per survey or petition, such relevant time is usually the date at which the last petition or survey response was received. In this instance, the date of the last petition received was 26 August 2025 and, as indicated above, I regard this as the relevant time.
"...The important principle from the case is that the applicant bears the onus of satisfying the Commission that an order should be made.
I find that this principle applies in deciding whether the Commission is satisfied that a majority of employees want to bargain.
...it is for the applicant to establish how this particular petition came into existence and why it can be relied on in deciding whether a majority want to bargain. It is not necessary that the full facts and circumstances be in evidence but there must be sufficient detail to establish the requisite satisfaction."[9]
[21] BHP says that the CEPU has not satisfactorily explained why the petition has a standard of integrity that should satisfy the FWC. BHP further says that the CEPU must persuade the FWC that the petition is valid, in that it actually measures what it purports to measure. Specifically, BHP says (emphasis in original):
[23] What BHP proposes arising from this is that s.237 requires a finding that a majority of employees who will be covered by the proposed agreement want to bargain for that proposed agreement, being an agreement with the same scope as set out in the s.237 application. BHP submits that without such clarity, the FWC would only be determining if the employees wanted to bargain in a more abstract sense - without for example any sense of who would be covered by the agreement. In support of this notion, BHP notes that "bargaining" as understood in the Act occurs only when, with reference to a proposed enterprise agreement, there is a notification time - including a notification time triggered by an MSD coming into operation as per s.173(2)(b).
[24] If this understanding is correct, then BHP says:
"...for a petition to be valid in determining whether employees want to bargain, the evidentiary burden in section 237(2)(a) must be met, and the employees must not have been led to misunderstand the proposed agreement's scope: see Independent Education Union of Australia v Bialik College Limited."[13]
[25] In that matter, Deputy President Millhouse found as follows (citations removed):
"...there is no evidence before me that I consider to be appropriate to allow me to determine whether a majority of employees want to bargain. The Petition, which is titled "Bialik Creche Enterprise Agreement petition," plainly relates to a proposed agreement that applies to all employees of the Creche without exception, including the Creche Manager. The Petition cannot therefore be regarded as representing employee views in respect of a proposed agreement that covers employees working in the Creche, excluding the Creche Manager. Indeed, the relevant employees have not had the benefit of being apprised of the revised agreement scope."[14]
[26] In the present matter, BHP says that the FWC cannot be satisfied that the participants in the petition had the scope of the proposed agreement explained to them. Given this, it can be inferred that they were not being asked about a proposed agreement but rather about bargaining in the abstract sense.
[27] Evidence for BHP was provided by Mr Luke Bolzan who is the Rail Network Maintenance Manager for BHP and by Ms Rachel Dawson, who is a partner at Herbert Smith Freehills Kramer and a legal representative for BHP. Mr Bolzan's evidence dealt mainly with the details of how BHP conducts its relevant rail operations and is of particular significance with respect to the issue of fairly chosen. However, with respect to the issue of majority support, his evidence was of limited relevance.
[28] With respect to the evidence of Ms Dawson, it dealt with two previous MSD applications made by the CEPU involving employees of BHP and a third such application made jointly by the CEPU and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). Ms Dawson, who was not required for cross examination, gave evidence that these applications all had similar but not identical scopes to the present application. In summarising her findings Ms Dawson stated as follows:
"I have been instructed to review and compare the confidential employee lists which have been filed on behalf of the Respondent in each of the Previous MSD Applications and the Present Application for the purpose of providing this statement and confirm:
(a) there are 35 employees that were covered by the scope of the First Application and are covered by the scope of the Present Application;
(b) there are 21 employees that were covered by the scope of the Second Application and are covered by the scope of the Present Application;
(c) there are 14 employees that were covered by the scope of the Third Application and are covered by the scope of the Present Application; and
[29] In closing submissions on this issue, the CEPU described BHP's objections as
"...overly technical and divorced from the evidence."[16]
The CEPU submitted that the objection was not founded on significant reasoning and was made despite BHP making the concession that the petition process was quite orthodox (see [18] above).
"While the petition has been supplied to the Commission, on a confidential basis, there can be no doubting that the petition was validly completed."[18]
[31] The CEPU submits that the employees agreed to the question posed as follows:
"I understand the purpose of this digital petition is to confirm that I want to bargain with my employer for an enterprise agreement."[19]
[33] The CEPU then asks the - presumably rhetorical - question as to whether in an MSD application an applicant needs to be able to prove that every relevant employee understood the scope of the proposed agreement and suggests that to do so would be an impossible exercise. The CEPU then takes issue with BHP's grounds for its submission regarding the need for the scope of the proposed agreement to be understood by the voting employees. It proposes that BHP's reading of the requirements of s.237(2)(a) are not available to it, based on the actual wording.
[34] The CEPU contends that the requirement in the Act is not that employees want to bargain for a specific agreement, but rather that the majority of employees who will be covered by the agreement want to bargain. It rejects BHP's argument that the Act implies anything different in s.237(2)(a) or that anything can be imported from s.173(2)(b) to assist. The CEPU also suggests that to adopt the BHP argument would act to stop any amendments to the scope of the proposed agreement. In summary, the CEPU says the BHP argument is misconceived but ultimately this is irrelevant because in any case it has established that the employees want to bargain for a specific agreement.
[35] The CEPU submits that there is clearly a majority as demonstrated in the spreadsheet and that Mr Softley had made it clear that the agreement was for employees in Signals and that the petition was only to be completed by trades qualified employees in Signals. It says that the FWC can be satisfied, even if only by inference, that the employees were aware of the proposed scope and thus the CEPU has discharged its onus.
[36] In its closing submissions, BHP noted its written submissions had proposed that the onus of proving the requirements of the Act had been met fell to the CEPU. It noted further that the CEPU had made no submissions to the contrary and as such was making its closing submissions on the basis that the CEPU had accepted this notion.
[38] In BHP's submission, the history of MSD attempts and what it describes as the lack of evidence about the petition has two consequences. Firstly, it brings into question the validity of the petition with respect to the issue of whether it measures what it needs to measure. In this regard, BHP rejects the CEPU's characterisation of its argument about employees needing to be aware of the scope of the proposed agreement and notes again that bargaining must mean something beyond bargaining in an abstract sense.
[39] It then turns to Mr Softley's petition email to employees and notes the particular wording:
"As most of you are aware that (sic) the ETU conducted an (sic) Majority Support Petition in December 2024 and we have had some Fair Work Commission exchanges regarding an MSD for an Enterprise Agreement in Signals.
Upon some legal advice, we now require an updated Majority Support Petition List to support our progress further."[23]
[40] BHP says this is problematic because it references the 2024 petition - which was for a different group of employees - and infers that the scope for the upcoming petition will be the same. Given the changes in the group, BHP says that the employees could not have been certain as to the proposed scope of the agreement.
[42] BHP also submits that the question in the petition itself does nothing to explain the proposed scope but instead, by asking "do you want to bargain for an enterprise agreement", asks about bargaining in the abstract sense. Finally, BHP submits that the FWC knows nothing about what the petitioned employees were told other than what appears in the petition email. It notes that Mr Softley gave little evidence on this and that the FWC should infer that such evidence as he might have given on that issue may not have helped the CEPU. BHP further submits that neither of the other CEPU witnesses spoke of what they were or were not told about the petition notwithstanding that they participated in the petition themselves.
[43] In response to my questioning, BHP agreed that there may be some scenarios where this issue was not as relevant - for example, where the proposed agreement was to cover everyone in an enterprise. However, given the different MSD attempts and the changing cohorts, it says that what needed to be clear was that the employees understood the cohort in the present case was just Signals and did not contain people who were included in previous attempts. BHP further submits that the CEPU could have addressed this issue and provided such clarity but elected not to do so.
[44] Again, in response to my questions, BHP submitted that the issue of scope changing over time and through bargaining did not detract from its argument. It submits that there are points in time where scope is established to meet the requirements of the Act and that although the scope may change thereafter, there is a point in time where it needs to be established and clear. BHP gave the example of a scenario where one small group of employees who made up a fairly chosen cohort might also be capable of being part of a larger and also fairly chosen cohort that included all other employees. However, the small group may not want to bargain with the bigger group if the other employees outnumber them and have different objectives. In such a case, the small group may want to bargain on their own, but not as part of the bigger group. On that basis, BHP submits that being aware of the scope is of particular importance.
[45] In reply submissions, the CEPU proposed that the test in s.237(2)(a) was not as restrictive as BHP had submitted. The CEPU noted that the section does not mention "in relation to the agreement" but rather simply says "want to bargain." As such, the CEPU submits that the FWC should not adopt what it referred to as the "restricted test" as set out by BHP.
[46] The other issue raised by BHP in closing submissions was the issue of the integrity of the petition. Once again noting that the onus falls to the CEPU to satisfy the FWC, BHP submits that there was no evidence to suggest that the petition was acquired and stored in a secure fashion. Drawing again from Veolia - see [18] above - BHP submits that an applicant must demonstrate via evidence how the petition came into being and why it can be relied upon. Further, BHP notes the conclusion of Commissioner Booth in Veolia about integrity of petitions as follows:
"In my view, to establish the requisite satisfaction it is necessary to establish, on the evidence before the Commission, in this case that the petitions were at all times under the custody and control of responsible persons whether they be organisers or delegates. That has not been shown on the evidence.
That is, the mere lack of evidence of coercion or undue influence by the AMWU is not sufficient to found a level of satisfaction when there is also no evidence as to who had control and custody of the petitions during the time that the petition was available."[25]
[47] BHP submits that the custody and control of documents is an important consideration for the FWC given that there are significant rights at play in any decision on an MSD. It was further submitted that the CEPU had not discharged its onus in this regard because it had provided no evidence with respect to this issue. In addition to the finding in Veolia, BHP drew my attention to the finding of Commissioner Matheson in Health Services Union v Clinical Laboratories where, drawing on Veolia the Commissioner found as follows:
"In the current matter the evidence suggests that between three and five persons collected the statements. Only two of those persons gave evidence to the Commission about how they were collected and the evidence of those two persons does not account for all statements that the Applicant is seeking to rely on to establish majority support. Apart from the fact that there is not a prima facie majority, the statements were not at all times under the custody and control of those persons who gave evidence to the Commission and the conflicting evidence about who was collecting the statements and the uncertainty about how many were personally obtained by each of the persons collecting and how those persons who did not give evidence collected the remaining statements brings into question the reliability of those statements".[26]
[48] In that matter Commissioner Matheson found that she could not be satisfied that a majority of employees wanted to bargain. Although the scenario was somewhat different to the present matter due to the use of physical rather than online petitions, BHP submits that the principle remains the same - evidence should be provided as to how the data was collected, how it was stored and how it was handled. BHP submitted that this was potentially even more relevant with digital petitions, proposing as follows:
"...the ability to manipulate digital signatures is far more egregious or far more likely than committing the fraud of getting out a set of coloured pens and filling in a petition."[27]
"Indeed, it's not only the malicious editing of a petition, but the one keystroke mistake that causes errors in data is so much more likely with a digital petition than with a pen and paper petition. So if the Commission were presented with a bunch of pen and paper petitions, there'd at least be a basis for satisfaction. You could say, 'They're all in different pens', and you might form a different view as to the one Commissioner Booth ultimately came to..."[28]
[49] With respect to the current scenario, BHP submitted as follows:
"The Commission knows nothing about how a participant identified themselves in the petition process and proved who they were. Aside from the petition being accessible via a link set out in an email, how the petition was collected, what platform was used, what security controls were in place, how everything was collated, how the data was then collected from whoever conducted the petition. Who, from the union, collected that data? How the data was stored? With whom the data was shared? Who had access to the data on the way through and could have edited the spreadsheet? We don't have any of that stuff. We also don't know whether the data sent to the Commission was edited in any way by the union, when it received it from whoever this anonymous petitioning organisation is, that's if they didn't do it in house. There's just no evidence. As such, the Commission, just has no evidence. It cannot be satisfied of the integrity of that petition. That means it can't reach the requisite level of satisfaction."[29]
[50] By way of an example of the FWC finding that a process did have integrity despite submissions to the contrary, BHP directed my attention to the finding of Commissioner Spencer in Australian Municipal Administrative Clerical and Services Union v Virgin Australia [2019] FWC 7960 (Virgin). BHP described the finding in that case as follows:
"...there was evidence before the Commission of an online pledge being used, in a closed Facebook group, that contained Virgin Australia employees, or membership was limited to Virgin Australia employees, within the relevant department, and there was evidence of how the master list of pledges went into and remained in the union's control and how the edits to that list were made. So, for example, duplicates were removed and the like, and the union went to the trouble of going through its process and explaining it, in sworn evidence, which was capable of being cross‑examined on and, ultimately, Commissioner Spencer, in that case, found that the approach was diligent and wouldn't have stood in the way of the making of the majority support determination, but on different grounds refused the application."[30]
[51] I note that I have read the Virgin decision and accept that the synopsis above is accurate. BHP also drew my attention to a recent finding of Deputy President Slevin in United Workers Union and Tribe Breweries. In explaining his satisfaction with the process used to determine a majority, the Deputy President accepted the evidence given by the union as follows: (note that Ms Cresshull was the relevant UWU official).
"Ms Cresshull said she took the following steps to ensure proper custody and control of the petition was maintained:
a) On 5 December 2025 she attended the Goulburn Site, provided employees with copies of the petition, explained the process, and collected completed petitions directly. She retained sole possession of the signed petitions in a secure manner during the visit.
b) After the site visit, Ms Cresshull met with UWU delegate Glenn Taylor and a UWU member from Brewing to provide them with the petition and blank templates. She asked them to:
d) Ms Cresshull maintained consistent communication with UWU members at the Goulburn Site during the signature collection period. She informed them of who held the petition and how to sign it.
e) Ms Cresshull stated she ensured that the petition was securely kept by herself, Mr. Taylor, and the three UWU members in Brewing, Logistics, and Trades throughout the process.
[52] BHP also noted the findings of Commissioner Hunt in CEPU v Downer EDI Works Pty Ltd [2019] FWC 352 and Deputy President Colman in NUW v Lovisa Pty Ltd [2019] FWC 2885 with respect to the sorts of standards required to ensure integrity.
"My learned friend's application is based on several premises, all of which are misconceived.
The first is that no notice of this defence was given. Firstly, there is no obligation to give notice of a defence. This is an application being made by an applicant under an Act, and the applicant has an onus to satisfy various elements.
Secondly, as a matter of fact, it is incorrect because if you look at paragraph 79 and 80 of my written submissions I say exactly what I said to you, Deputy President, that there is no evidence of the integrity.
If the suggestion is that an applicant can say nothing in evidence in chief and it is the responsibility of a respondent to tell them how to colour by numbers in their responsive submissions and then that evidence goes in as reply then that is utterly misconceived and I will say why.
Because this is evidence that should have been filed in chief. Not in reply evidence. This is my learned friend's onus. My learned friend has access to the Act. My learned friend has access to all of those decisions that I just ran the Commission through.
The test is patently clear. You must satisfy the elements. There was nothing put in chief. So there was nothing for us to criticise in our responsive submissions, except to say there's nothing been said. Now what's being proposed is that we effectively go right back to the beginning because this evidence needs to be led as evidence in chief."
What's effectively being done here, with respect to my learned friend, Deputy President, is that I have educated the other side on how to run its case and now it wants to add to it by way of a little bit of a do over, and that is not something the Commission should be countenancing." [33]
[54] The CEPU objected to the BHP position and suggested that it was inferring that the CEPU had tampered with the data before it was sent to the FWC. BHP rejected this submission and said that the crux of its argument was that there was no evidence before the FWC to allow it to reach a state of satisfaction about the integrity of the petition. BHP further submitted that the issue was not about how the information was conveyed to the FWC but a broader issue of how it was collected, and how it was controlled before it was provided to the FEC.
[55] Having explored this issue with the parties, I moved them into conference mode to discuss how things might progress. Arising from this, the CEPU advised that it was not pressing its request to put on further evidence.
[56] However, the CEPU made further submissions addressing the issue. It submitted that the available evidence demonstrated that a petition was conducted, data was produced, and the data was provided to the FWC. As Mr Softley was not cross-examined on that evidence, the CEPU says that the FWC could infer on the balance of probability that the data provided to the FWC was the data collected by the petition.
[57] In the first instance I will address BHP's contention about the issue of scope. For ease of reference the relevant part of the Act, being s.237(2)(a) reads as follows:
(a) a majority of the employees:
[58] The CEPU says in effect that the FWC needs to be satisfied that the employees want to bargain, whereas BHP say the FWC must be satisfied that the employees want to bargain for the proposed agreement. I accept the general premise put forward by BHP that the bargaining contemplated by the section above is not simply bargaining in an abstract sense. While it is true - as the CEPU points out - that the final sentence is "want to bargain" and not "want to bargain for the proposed agreement", I do not think the matter ends there. In my view, it is clear that the bargaining contemplated is to be conducted for the agreement referred to in section (ii) above.
[59] The question then arises as to what is meant by "the agreement". I note that the wording is not bargain for "an" agreement but rather "the" agreement. Further, s.237(1) states as follows (with my emphasis):
"The FWC must make a majority support determination in relation to a proposed single - enterprise agreement..."
[60] Clearly, the MSD is made in relation to an enterprise agreement that is proposed. There is no requirement in the section to specify particular provisions of that proposed agreement such as term, wages or conditions. However, the FWC is set with the task of determining whether a majority of employees who would be covered by the agreement want to bargain. As such, the FWC must be made aware of who would be covered by the agreement to determine how many employees in total will be covered, so it can determine what a majority entails. Put another way, the FWC must be clear as to the proposed scope.
[61] BHP submits that the employees must also be aware of the scope. I agree with BHP that the findings of Deputy President Millhouse in IEUA v Bialik College Ltd - see [25] above - suggest that employees must be aware of the scope of the proposed agreement. However, I am of the view that the weight to be attached to this matter will depend on the specifics of each case and the requirements to achieve a level of satisfaction will also vary.
[62] Two examples will highlight cases where the issue is of limited weight - the first of which was proposed by BHP. In a circumstance where the proposed agreement will cover all employees, the FWC would not need to make significant investigations into the issue of the employees' understanding of the scope. In a similar vein, where an agreement is proposed to replace an expired agreement and replicate its scope, again there may be no issue if employees are told that the agreement is a replacement.
[63] However, I agree with BHP that there are some instances where the scope could be particularly relevant. The example BHP gives is apposite, as it is a scenario that has come before me by way of an application to vary the scope of bargaining. That example is where one group of employees - being a minority of the total employee numbers - do not wish to bargain with the wider employee group as they fear a "tyranny of the majority" scenario where their interests are subservient to those of that wider group. BHP proposes that in such a scenario, the members of the minority group may vote yes to bargaining for an agreement to cover only themselves but no to bargaining for an agreement to cover the wider workforce. However, it is only by being aware of the proposed scope that they could properly make the decision.
[64] BHP rejected the CEPU suggestion that it was saying the FWC must satisfy itself that every employee knew the exact nature of the scope of the proposed agreement. I agree that this would place a significant and, in many cases, unnecessary hurdle in the path of applicants for an MSD. Rather, I take the view that the FWC should assess each case on its merits and particular circumstances but focus on the question of whether the employees understood what they were voting for.
[65] In the present matter, I am satisfied that the employees concerned understood that the CEPU was seeking to get an enterprise agreement that would cover their employment. While I accept that there had been some different permutations of scope pursued in previous applications, the central theme appears to have been an agreement that covers the Signals employees - either with a limited number of other employees or on their own. Even with the evidence of Ms Dawson, which I accept, I am satisfied that the proposed agreement has a focus on the Signals team to the exclusion of the large majority of other employees of BHP.
[66] I am satisfied that a reasonable person in the chosen cohort would have been aware of the intended coverage of the group. I note Mr Softley's unchallenged evidence was as follows:
"The email that I sent on 25 July 2025 to this closed group was under instruction from my members after several discussions on how best to secure an enterprise agreement covering their employment. Initially we'd discussed, and attempted to secure, a broader scope but my clear instruction by July of 2025 was to seek an agreement just covering the signal technicians.
I recall, on more than one occasion, during meetings with the signal technicians using words to the effect of, "you want to bargain for an enterprise agreement covering just the signal technicians" and being told, unreservedly, that this was the case. The group made very clear to me that they saw their work and their sills as being distinct from the rest of the BHP rail workers and wanted this reflected in an agreement.
The July 2025 email was sent only to the signal technicians, and I made clear that the petition was only for tradespersons working in signals. I was in constant contact with my members during this period and there was no confusion as to what we were trying to achieve; an enterprise agreement for the signal technicians."[34]
[67] Mr Softley also sent an email which has been discussed above. I am satisfied that, to a reader who was in the cohort discussed in Mr Softley's evidence above, the statement about "an MSD for an Enterprise Agreement in Signals" would have been consistent with what Mr Softley had been discussing with them. Although BHP took issue with Mr Softley's use of "Trade Cert 3" when the correct qualification is trade certificate IV, I note that he used "a minimum of" and limited the cohort to tradespersons in Signals. As such, it was open to any certificate IV qualified people in Signals to participate.
[68] Given all of the above, I do not find that there are any issues with the validity of the petition that would prevent me issuing an MSD. However, I take a different view with respect to the integrity of the petitions. It is clear from the case law identified by BHP that the FWC has imposed a reasonably stringent standard for petitions received. I note, in addition to the findings set out above, the findings in the two cases referred to at [52]. In the first instance, Commissioner Hunt found as follows:
"I have intensely scrutinised the coloured scanned petitions provided by the CEPU. I note each person's signature and their written name appears to me to be unique. There is no basis for me to conclude that individual(s) wrote a person's name and signed the petition on behalf of other employees."[35]
"As to the custody of the signed petitions, I accept Mr Bamford's evidence that he maintained strict control and security over the signed petitions, and delivered them safely to Mr Hayes, who in turn delivered them safely to Hall Payne Lawyers. I am satisfied the signed petitions were properly held upon collection by Mr Bamford (other than the 2-3 forms held by Mr Hayes which were properly held by him)."[36]
[69] In the second matter, Deputy President Colman found as follows:
"It may be appropriate in a particular case to enquire into the way in which the signatures on the petition have been obtained, who has had custody of the petition at all relevant times, and other details of the petitioning process. In this case, Ms Anna Thwaites, NUW organiser, gave evidence that she retained control of all of the petition documents at all relevant times, except for the fifth petition document, which she entrusted to a Ms Clark for a time during which the first four signatures on that page were obtained, whereafter the document was returned to Ms Thwaites. It is also apparent that each petition document clearly explains what its purpose is, as well as the significance of a person adding their name to the petition. There is a space for employees to enter their name, signature and date. All of this supports the union's contention that the evidence of employee support for bargaining contained in the petitions is reliable."[37]
[70] Most of these cases - with the exception of Virgin - dealt with physical petitions. However, I accept BHP's submission that the concepts of data security and access to the data are relevant in all cases. This is also consistent with the findings in Virgin where the union involved took a number of demonstrable steps to secure the data and restrict access to it. I also accept that the FWC should be diligent in its assessment of whether a party has met all of the requirements when making an MSD. The advent of provisions in the Act such as intractable bargaining have potentially created scenarios where not only is a party forced to bargain when it does not wish to, but the party may eventually have enforceable agreement provisions imposed on it via an intractable workplace determination.
[71] In the present matter, the CEPU has invited me to accept on the balance of probabilities that the data provided to the FWC was the data collected by the petition. I am not prepared to do so. While I do not in any way seek to suggest the CEPU has deliberately manipulated the data, the case precedent suggests to me that the FWC needs to be satisfied that the data was properly obtained, stored and protected. In this matter, the FWC does not know how the petition data was converted into an Excel spreadsheet. It does not know who had access to the spreadsheet before it was sent to the FWC, nor does it know whether there were any corrections or additions to - or subtractions from - the raw data.
[72] Further, the FWC cannot even be absolutely certain who it was that actually completed the online petitions. It may be that the petitioning software used by the CEPU can verify the identity of the person completing the survey but there is no indication or evidence that this is the case. As such, I cannot be satisfied that the petition has the level of integrity required to ground a finding that there is a majority of employees who wish to bargain.
[73] It is not my intention to suggest online surveys should not be used. They are a method that has been used previously and in situations where a workforce is remote, they are clearly effective and efficient for the applicant. However, if an applicant uses such a petition, it must be mindful that the process may be closely scrutinised by the FWC and as such, it must be able to demonstrate with evidence that the data was properly obtained, stored and protected. I note that the FWC has accepted direct evidence from union officials in past matters as to what they did with the data and do not suggest that there is any reason to depart from that practice. However, I also note that the union will bear the onus of demonstrating that it has met all of the requirements of the Act and demonstrating the integrity of its petition / survey / vote data is an important part of demonstrating a majority.
[74] For the FWC to issue an MSD, an applicant must demonstrate to the FWC's satisfaction that it has met all of the requirements of s.237(2). In the present matter and for the reasons set out above, I cannot be satisfied that there is majority support for bargaining. Consequently, the applicant has not satisfied the requirements of s.237(2)(a). Given this, I cannot make the MSD and there is no need for me to consider the remaining matters in s.237(2) and I decline to do so.
[75] The application does not meet the requirements of the Act and it must be dismissed and I so order.
[1] See Court Book page 6 at section 1.2.2.
[2] AWU v Woodside Energy Ltd [2023] FWC 249 at [345].
[9] AWMU v Veolia Water Operations Pty Ltd [2015] FWC 2561 at [34]- [35] and [38].
[11] Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia [2014] FWCFB 1317 at [46].
[12] MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519 at [8].
[14] Independent Education Union of Australia v Bialik College Limited [2022] FWC 1755 at [41].
[23] See Court Book page 28 at second paragraph.
[24] See Court Book page 24 at [10] and page 19 at [12].
[26] Health Services Union v Clinical Laboratories [2024] FWC 1287 at [60].
[31] United Workers Union and Tribe Breweries [2026] FWC 340 at [10].
[32] See Court Book pages 63 and 64 at [79]-[80].
[33] Transcript at PN460 to PN465 and PN467.
[34] See Court Book page 116 at [5]-[7].
[35] CEPU v Downer EDI Works Pty Ltd [2019] FWC 352 at [110].
[37] NUW v Lovisa Pty Ltd [2019] FWC 2885 at [34].
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