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[88]
[2026] FWC 773
General information, not legal advice.
Fair Work Commission
2026-03-09
Original judgment source is linked above.
s.240A(1) - Application for a voting request order for a proposed multi-enterprise agreement
Application for a voting request order in respect of the proposed WA Catholic School Support Staff Enterprise Agreement 2024 - - bargaining ongoing since 28 September 2023 - refusal by the IEU to agree to request being made for employees to approve proposed agreement - whether refusal unreasonable in the circumstances - whether making the request would not be consistent with or undermine good faith bargaining - voting request order made
[1] This decision concerns Catholic Education Western Australia Limited's application under s 240A of the Fair Work Act 2009 (Cth) for a voting request order in respect of the WA Catholic School Support Staff Enterprise Agreement 2024 (Proposed Agreement).
[3] Section 180A of the Act provides that an employer cannot put a proposed multi-enterprise agreement to an employee vote unless each bargaining representative (that is an employee organisation) for the proposed agreement has provided written agreement to the request, or a voting request order has been made. CEWA wishes to put the Proposed Agreement to a vote. The UWU and ANF have provided written agreement to this request. The IEU has not.
[5] I heard CEWA's application on 20 November 2025. I granted permission for CEWA to be legally represented. CEWA, the IEU and UWU provided evidence and submissions. The ANF did not seek to be heard on the matter.
[6] Having considered the relevant evidence and submissions, I find that the IEU's refusal to provide written agreement was unreasonable in the circumstances. The detailed reasons for my decision follow.
[8] Their evidence was tendered unchallenged. The issue in this case is not a dispute over what has occurred; it is over the significance of the events.
[9] Bargaining for the Proposed Agreement commenced on 28 September 2023 when the single interest employer authorisation came into force.
[10] On 2 December 2023, the IEU wrote to CEWA requesting a start for bargaining for an agreement for support staff at WA Catholic schools. The first bargaining meeting took place on 27 March 2024.
[16] On 21 May 2025, CEWA wrote to the IEU declining the IEU's request to reconvene bargaining. The letter also stated:
Throughout the bargaining process, we reviewed the IEU log of claims and responded accordingly. The IEU was given the opportunity to provide final feedback on the Proposed Agreement in the final bargaining meetings, but none was provided.
Out of the IEU 101 claims submitted (noting that one claim was withdrawn), 32 claims were agreed upon and an alternative was proposed for 26 claims. Please see attached a without prejudice summary of our response to the IEU log of claims.
While 43 of the 101 claims were not agreed upon, good faith bargaining does not obligate a bargaining representative to make concessions or reach an agreement on the terms to be included in the final agreement.
We are disappointed by the IEU's failure to provide its written agreement. Therefore, on behalf of the Employers, we wish to advise the IEU that we will apply for a request for a voting order under the relevant provisions of the Fair Work Act 2009 (Cth)."[9]
[17] On 22 May 2025, CEWA filed an application for a voting request order. On 7 July 2025, the UWU wrote to CEWA providing its written agreement to put the agreement to a vote. On 8 July 2025, CEWA discontinued its application for a voting request order.
[18] On 24 July 2025, CEWA wrote to the bargaining parties to advise that a further bargaining meeting was scheduled for 6 August 2025.
[19] On 31 July 2025, the ANF wrote to CEWA providing its written agreement to put the agreement to a vote. That same day, Mr Mark Elliot of the IEU sent an email to CEWA that relevantly stated:
Regarding the call for agenda items, the IEU notes that it does not resile from any of its outstanding claims. However, for the purpose of prioritising matters raised as particular concerns by the IEU membership and leadership, we wish particularly to revisit the following items in this meeting:
[23] On 28 August 2025, CEWA made the current application for a voting request order. On 13 October 2025, the IEU filed an application under s 240 of the Act for the Commission to deal with a bargaining dispute relating to the Proposed Agreement. That matter has been stood over until this matter is determined.
[24] The relevant statutory provisions to this application are ss 180A, 240A and 240B, which are set out below:
"180A Agreement of bargaining representatives that are employee organisations - proposed multi‑enterprise agreements
(1) This section applies to a proposed enterprise agreement that is a multi‑enterprise agreement.
(2) An employer must not request under subsection 181(1) that employees approve the enterprise agreement by voting for it unless:
(a) each bargaining representative for the enterprise agreement that is an employee organisation has provided the employer with written agreement to the making of the request; or
(b) a voting request order permits the employer to make the request.
Note: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).
"240A Application to FWC for voting request order
(1) After the notification time for a proposed multi‑enterprise agreement, a bargaining representative for the enterprise agreement may apply to the FWC for an order (a voting request order) permitting an employer to make a request under subsection 181(1) that employees approve the enterprise agreement by voting for it if:
(a) each bargaining representative for the enterprise agreement that is an employee organisation has been asked to provide the employer with written agreement to the making of the request; and
(b) one or more of the employee organisations has failed to provide the written agreement."
The FWC must, on application under subsection 240A(1) ... make a voting request order permitting an employer to make a request if the FWC is satisfied that:
(a) for each employee organisation that has failed to provide written agreement to the making of the request, the failure was unreasonable in the circumstances; and
(b) if the request relates to approval of a proposed enterprise agreement - the making of the request by the employer would not be inconsistent with or undermine good faith bargaining for the enterprise agreement."
[26] In Sydney Trains, the Full Bench made the following observations (citations omitted):
[51] Sections 240A and 240B are relatively new provisions introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The Commission has, until now, not had occasion to deal with an application for a voting request order under s 240A or to consider the requirements imposed by s 240B. The explanatory memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) also provides little assistance. It does no more than paraphrase the language of the provisions themselves.
[52] In relation to s 240B(a), it is sufficient to say that the assessment of whether the failure of a bargaining representative to agree to the making of a request was unreasonable in the circumstances calls for a broad value judgment involving a balancing of interests the affected parties and informed by the statutory context, including the objects of the Act and of Part 2-4.9 The subsection requires an objective assessment of the reasonableness of the stance taken by the employee organisation having regard to the whole of the circumstances relating to the bargaining. It directs attention not to whether the Commission believes it is reasonable for a vote to be conducted, but whether the particular failure of an employee organisation to provide written agreement to a request being made to employees to approve the enterprise agreement was unreasonable.
[53] Consideration of whether making a request for employees to approve an agreement would be inconsistent with or undermine good faith bargaining for the enterprise agreement invites consideration of the good faith bargaining requirements in s 228. Whilst the good faith bargaining requirements in s 228 are likely to inform the assessment, s 240B(b) requires a prospective, future focused consideration of whether the act by the employer of requesting employees approve the enterprise agreement by voting for it would itself be inconsistent with or undermine good faith bargaining. A past failure to comply with the good faith bargaining requirements would not necessarily require a positive answer to that question.
[28] I now turn to consider the present matter.
[29] CEWA submits that the parties have been bargaining for over two years and have attended 18 bargaining meetings. The parties have made concessions but have reached an impasse. A vote will break that impasse, one way or another.
[31] The IEU also distinguishes Sydney Trains from the present application based on the number of outstanding bargaining claims. At the time of CEWA's first Voting Request, 57 of the IEU's 101 claims had been rejected, with 13 claims partially agreed and 31 claims agreed.
[32] The IEU further submits that several of the rejected claims are very significant to its membership and that contrary to CEWA's assertion, CEWA was not willing to compromise. Further, unlike Sydney Trains, CEWA has known the IEU's contested claims from the outset of bargaining. The IEU submits that this supports a finding that their refusal is not unreasonable.
4.2 Significance of putting the Proposed Agreement to a vote
[33] CEWA submits that a voting request order involves nothing more than the Proposed Agreement being put to a vote. The IEU has coverage of over 75% of the relevant employees and will be free to campaign against the Proposed Agreement should it wish to do so.
[34] The UWU contends that CEWA has downplayed the consequence of putting an enterprise agreement to a vote and that this is a factor that must be given greater significance when assessing reasonableness. The UWU submits that CEWA's framing undermines the statutory regime created through s 240A, as the legislature saw fit to insert s 240A and thus distinguish the voting process for multi-enterprise agreements from single-enterprise agreements.
[35] The UWU submits that a more appropriate and expansive framing was also reached in a more appropriate and expansive framing was also reached in Sydney Trains at [58], where the effect of a refusal meant employees were denied the opportunity to vote on a wages package that had otherwise been agreed to by the bargaining parties. The UWU also says that reasonableness cannot be simply assessed in the context of the consequences.
4.3 Other bargaining representatives have provided their written agreement
[36] CEWA submits that the other union bargaining representatives have provided their written agreement. Their membership will be denied an opportunity to secure improved terms and conditions if the voting request order is not granted.
[37] The UWU disagrees with CEWA's contention that the other union bargaining representatives providing written agreement is a factor that supports a finding of unreasonableness on the IEU's part. The UWU says that there are situations with multiple union bargaining representatives where some unions may agree to a voting request because those parties have limited interest in the bargain; their claims have been appropriately dealt with; or they are a smaller party in bargaining with less industrial power. This in itself does not mean that a union refusing to agree to a voting request is being unreasonable.
[38] CEWA submits that the IEU has refused to give written agreement as it wishes to extract better bargaining outcomes. The legislative history of the new statutory provisions show that Parliament did not intend for unions to have such a veto power. CEWA points to Section 180A in its original - but not ultimately enacted - form provided each union bargaining representative with an unfettered veto to a proposed agreement being put to a vote. There were no equivalents to subsection 180A(2)(b) or ss 240A and 240B.
[39] This 'veto power' was ultimately removed shortly before the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) was passed. CEWA submits that this shows that Parliament did not intend for each union bargaining representative to have the ability to veto an agreement being put to a vote.
[40] The IEU accepts that the Proposed Agreement does contain some improvements over the current conditions for the relevant employees. However, the wage offer in the Proposed Agreement is no different to what employees currently have, which is parity wage increases with counterpart employees who are employed by the Western Australian Department of Education.
[41] The IEU also contends that, contrary to CEWA's submission, it does not seek a veto over the Proposed Agreement going to an employee vote. The IEU says that such a submission misunderstands the intention of the new statutory provisions - consent is the default position for multi-enterprise agreements going to ballot, not the exception.
[42] The IEU submits that CEWA seeks to use the voting request order as a "battering ram" to force an agreement to a ballot without using other available mechanisms under the Act to resolve bargaining disputes.
[43] The IEU says that a voting request order should not be granted as a substitute for one of the key objects of Part 2-4 of the Act, being "dealing with disputes where the bargaining representatives request assistance".
[44] The UWU submits that the ability to continue bargaining and attempt to resolve outstanding claims is the purpose behind s 240A. A party seeking to advance their claims by refusing to agree to a voting request should not been seen as an indication of unreasonableness, unless, that refusal focuses on trivial matters, such as the situation in Sydney Trains.
(a) each bargaining representative that is an employee organisation has been asked to provide written agreement to the Voting Request and that the IEU has refused to provide the written agreement; and
(b) the making of the request would not be inconsistent with or undermine good faith bargaining for the enterprise agreement.
[46] The sole issue is whether the IEU's refusal is an unreasonable refusal as per s 240B(a) of the Act.
[47] Based on the evidence and submissions of the parties, I make the following findings.
[48] The fact that other union bargaining representatives have provided written agreement to a voting request is not significant in this matter. It is not in contest that the UWU and the ANF have limited coverage of the employees covered by the Proposed Agreement and the IEU has the majority coverage. The UWU and ANF not providing written agreement in this matter does not support a finding that the IEU's refusal is unreasonable.
[49] I agree with CEWA that the act of putting a proposed agreement to an employee vote does not mean that an agreement will be made. The relevant employees will dictate that and the IEU can campaign for a 'no' vote if they wish to do so. However, I also agree with the UWU's submission that the significance of putting an enterprise agreement to an employee vote should not be downplayed - it is clearly meaningful under these new statutory provisions. The parliament has distinguished the process of putting a multi-enterprise agreement to a vote from the process for a single-enterprise agreement. This means that it has significance.
[50] I must admit I found the submissions regarding whether the IEU wanted the power to veto the Proposed Agreement going to a vote to be somewhat odd. There simply is no unfettered veto provision in the Act. The Act provides that written agreement must be given by union bargaining representatives before a proposed agreement can be put to an employee vote. Where that has been refused, an employer can apply to the Commissioner under s 240A.
[51] It is entirely understandable that the IEU wants to extract better outcomes for its membership. That is the goal of every bargaining party in any negotiation. I also understand why the IEU has refused to give written permission. It is not in contest that a large portion of its claims - including key claims regarding remuneration - have not been agreed to. These claims are important to its membership. The IEU has canvassed its membership, and its membership has not given the authority to agree. The IEU has also been active and diligent in the bargaining process. Given the large number of key claims outstanding, the IEU listening to its membership on its dissatisfaction with key claims not being agreed to and wanting to achieve better bargaining outcomes for its membership does not by itself make its refusal unreasonable.
[52] However, the history of the bargaining is a significant factor in these circumstances. The parties have been bargaining for over two years and there have been 18 bargaining meetings. There is no assertion that CEWA have not bargained in good faith.
[53] I understand why the IEU and its membership are dissatisfied with CEWA's position on the remaining claims. However, this is not a case of an employer refusing to discuss claims at all. I can see from the minutes of the final meeting on 6 August 2025 that CEWA provided considered reasons as to why they would not agree to the six IEU claims on the agenda. The minutes also show considerable discussions back and forth between the parties on the claims. I can also see from CEWA's correspondence to the IEU on 21 May 2025 (referenced at [16] of this Decision) a detailed summary of CEWA's position on the IEU's entire log of claims. Just because the IEU wants a different outcome, it does not mean that CEWA has not engaged.
[54] The parties accept that they have reached an impasse. This is a significant factor. I accept that there are other ways of breaking that impasse, such as through taking protected industrial action; seeking the assistance of the Commission through a s 240 application; or applying for an intractable bargaining determination. I also accept that the parties in this matter have not explored those other options yet and it is a factor in my consideration. However, it is also not a requirement under the new statutory provisions that every possible option must have been explored before a failure to provide written agreement is unreasonable. Further, these other options under the Act are often deployed in tandem
[55] I also note that the IEU did not make its s 240 application after the first voting request order application on 21 May 2025, nor after the bargaining meeting on 6 August 2025 when it became clear that the parties remained apart on key claims. The IEU made its s 240 application on 13 October 2025, well after the current application for a voting request order was made on 28 August 2025. This dilutes the potency of the argument that effectively this current application should not be granted until the parties go through Commission-assisted bargaining.
[56] In weighing up the various factors, I give particular significance to the bargaining length and history; CEWA's engagement in the bargaining process; and the fact that the parties have reached an impasse. In such circumstances, I find that the IEU's refusal to provide written agreement is unreasonable.
A Thomas, of counsel, instructed by D Dyer, for the Applicant.
[1] Independent Education Union of Australia v Catholic Education Western Australia Limited and others [2023] FWCFB 17.
[2] Fair Work Act 2009 (Cth) s 240B.
[3] Digital Court Book 58-62.
[16] IEU Outline of Submissions, DCB 229 [14] - 230 [18].
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