[2025] FWC 3920

The attached document replaces the document previously issued with the above code on 23 December 2025.

The Respondent's name was updated to be 'Hunternet Group Training Limited' throughout the decision.

[2025] FWC 3920 [Note: An appeal pursuant to s.604 (C2026/165) was lodged against this decision.]

Fair Work Act 2009

s.236 - Application for a majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Majority support determination - group not fairly chosen - application dismissed.

[1] The CEPU has applied for a majority support determination in relation to part of Hunternet Group Training Limited's workforce. The cohort of employees of Hunternet the subject of the present application are apprentices, trainees and school based trainees who are working towards their certificate II or certificate III in electrotechnology in New South Wales or the Australian Capital Territory (Electrical Apprentices).

[2] A hearing was conducted on 15 October 2025 in relation to this matter. Mr Ash Bamford, Official of the CEPU, gave evidence, as did Mr Nicholas Couper, Chief Operating Officer of Hunternet.

• [3] In an earlier decision,[1] I found that a majority of the employees who will be covered by the proposed enterprise agreement want to bargain.

[4] I am satisfied, based on the confidential material provided by the CEPU, that some of the Electrical Apprentices are members of the CEPU, with the result that the CEPU is a bargaining representative for employees who will be covered by the proposed enterprise agreement. Accordingly, the CEPU has standing under s 236(1) of the Fair Work Act 2009 (Cth) to make the application for a majority support determination.

[5] There is no dispute that Hunternet has not yet agreed to bargain, or initiated bargaining, for an enterprise agreement with the Electrical Apprentices.

[6] There are two issues in dispute between the parties. First, whether the group of employees who will be covered by the proposed agreement was fairly chosen. Secondly, whether it is reasonable in all the circumstances to make the determination.

[7] Hunternet is a not-for-profit training organisation. Hunternet employs apprentices and trainees under formal training contracts. Hunternet's apprentices and trainees are placed with host employers while they undertake their apprenticeship or traineeship.

[8] Hunternet was established in 1996 by Hunternet Cooperative Limited, which is a membership-based industry organisation also established in the 1990s in the Hunter Region for the purpose of helping drive economic development in industry.

[9] The objects of Hunternet, as disclosed in its constitution, include to promote, encourage, maintain, support and assist with the engagement of apprentices and trainees on behalf of Hunter based employers by providing labour hire services including education, training and support for those apprentices, trainees and host businesses.

[10] Hunternet employs about 210 apprentices and trainees, though this number varies from week to week as employees finish their qualifications, resign, or they are handed back to Hunternet by a host employer and Hunternet is not able to place the employee with a new host business.

[11] The Electrical Apprentices comprise about 50-60 of the 210 apprentices and trainees employed by Hunternet.

[12] Hunternet offers apprenticeships and traineeships in the following areas:

(a) Aeroskills apprenticeships, which involve providing maintenance, repair and overhaul services for general aviation businesses, commercial airlines, and the Australian Defence Force;

(b) Electrical apprenticeships in commercial, industrial and domestic settings;

(d) Fabrication and welding apprenticeships (also known as boilermaking);

(e) Electronics and Communication apprenticeships, which train the apprentice in the repair of computers, household whitegoods, mobile phones etc;

(g) Traineeships in Warehousing and Supply Chain; and

[13] The Electrical Apprentices are undertaking an Electrical apprenticeship as described in subparagraph (b) above. The other categories of apprentices and trainees described in subparagraphs (a), (c), (d), (e), (f) and (g) above do not form part of the Electrical Apprentices cohort.

[14] The table below contains a summary of the host employers, locations, and basis of payment for the Electrical Apprentices:

Other apprentices/trainees of Hunternet engaged at host business who are not covered by the CEPU's MSD application?

Geographical location and brief description of work in host business

Cardiff Rail Facility - maintenance of domestic rail

Yes - employees undertaking fitter machinist apprenticeships and fabrication and welding apprenticeships

Bennetts Green and Heatherbrae - underground mining equipment manufacturing

Electrical, Electronic and Communications Contracting Award

Yes - employees undertaking fitter machinist apprenticeships, fabrication and welding apprenticeships, certificate III in marketing, certificate III in transport and logistics, business traineeships

Mt Thorley - manufacturing access systems to mining equipment

Electrical, Electronic and Communications Contracting Award

John Hunter Hospital expansion and Williamtown - construction work

Yes - employees undertaking fitter machinist apprenticeships and fabrication and welding apprenticeships

Newcastle University - engine components and conveyor belts

Yes - employees undertaking fitter machinist apprenticeships, fabrication and welding apprenticeships, certificate III in sanding and blasting, and certificate III in vehicle body building

Yes - employees undertaking fitter machinist apprenticeships

Kangy Angy (Central Coast) - maintaining domestic trains

Yes - employees undertaking fitter machinist apprenticeships, certificate III in engineering fabrication, and certificate III in business services

Argenton - maintaining underground mining equipment

[15] The penultimate column in the table above shows that in all but two cases Hunternet places both Electrical Apprentices and other apprentices/trainees to work at the same host employer. I accept Mr Couper's evidence to the following effect about these arrangements:

• • Hunternet's Electrical Apprentices work alongside other Hunternet apprentices and trainees at the same host employers. For example, at HBT Waratah Engineering, Hunternet has mechanical and fabrication trades apprentices performing work on the same mining equipment as Hunternet's Electrical Apprentices, as well as an administrative trainee.[2]

• • Where Hunternet's Electrical Apprentices work at the same host employer as other Hunternet apprentices and trainees, they generally work in an integrated way. At each such site work is undertaken in a mixed workshop environment every single day, with the Electrical Apprentices working on the same equipment as Hunternet's other apprentices who are placed to work for that host employer.[3]

• [16] I prefer this evidence given by Mr Couper over Mr Bamford's evidence that "there would be little integration between the two trades at any such site".[4] It is apparent from paragraph [46] of Mr Bamford's witness statement that the foundation for this statement about there being "little integration" is primarily, if not exclusively, based on Mr Bamford's knowledge that different types of apprentices report to an appropriately qualified tradesperson in their particular field. For example, an electrical apprentice must be supervised by a qualified electrician, while an apprentice fitter must be supervised by a qualified fitter. I accept that different types of apprentices must be supervised by a person qualified in their field of study, but this does not say anything about the extent to which different types of apprentices may work together in an integrated way at a particular host employer. Mr Couper demonstrated by his evidence that he has a detailed understanding of the particular work undertaken by the different types of apprentices and trainees placed by Hunternet at the host employers identified in the table at paragraph [14] above.

• [17] It is apparent from Hunternet's organisational structure[5] and Mr Couper's evidence that Hunternet does not organise its business or workforce by separating out Electrical Apprentices from the approximately 150 other apprentices and trainees employed by Hunternet.[6] Hunternet organises its business into two broad cohorts: its managerial/support staff, and its apprentices/trainees. Hunternet then further organises its operations according to the host employer with whom the apprentices/trainees are placed. For example, Hunternet has a Workforce Development Officer who is responsible for all apprentices/trainees placed by Hunternet with a particular host employer. Although the host employer supervises the work undertaken by the apprentices/trainees placed by Hunternet with that employer, Hunternet's Workforce Development Officer assigned to that host employer has responsibility for human resources, industrial relations, payroll, training, and safety for all apprentices/trainees placed by Hunternet with the host employer. Hunternet's Workforce Development Officers report to a Workforce Development Coordinator, who reports to a Workforce Development Manager, who reports to Mr Couper.

[18] It is apparent from the table at paragraph [14] above that most of Hunternet's apprentices/trainees work at different locations throughout the Hunter Region (comprised of Newcastle, Lake Macquarie and the Hunter Valley) and the Central Coast. However, from time-to-time Hunternet engages apprentices/trainees to work in other areas around Australia. For example, Hunternet currently has one electrical apprentice working in Western Australia. That employee is based in Perth and is training to becoming a qualified electrician in Western Australia. Hunternet does not presently have any other apprentices/trainees working in another state or territory.

[19] The employment arrangements for Hunternet's apprentices/trainees are determined by the commercial arrangements that Hunternet enters into with its host employers. Some host employers agree that apprentices/trainees placed with them by Hunternet will be paid the rates and entitlements set out in the host employer's enterprise agreement, while other host employers enter into commercial arrangements with Hunternet whereby apprentices/trainees placed by Hunternet with the host employer will be paid award rates or some amount above the relevant award rate of pay. The different arrangements are summarised in the table at paragraph [14] above.

[20] Hunternet has not historically negotiated enterprise agreements with its apprentices and trainees, given the diversity of its employees and the hosts they are placed with, together with the requirements of the commercial arrangements between Hunternet and each of the host employers with whom the apprentices and trainees are placed.

[21] New South Wales and the Australian Capital Territory have a system of mutual recognition where persons who are qualified in an electrical trade in New South Wales are recognised in the Australian Capital Territory and vice versa. Other states and territories in Australia do not have the same system of mutual recognition with New South Wales for electrical trades.

• [22] In the context of "fairly chosen", the word "chosen" means selected to be covered by the relevant agreement.[7] In Cimeco Pty Ltd v CFMEU & Ors,[8] a Full Bench of Fair Work Australia considered the meaning of the word "fairly" in the expression "fairly chosen":

"[13] The word "fairly" is derived from the adverb "fair" and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of "fairly" in the Oxford Dictionary the most apt in this context are:

'by proper means, legitimately, impartially, justly'; and

'with due regard to equity, candidly, impartially; without undue advantage on either side.'"

[23] Section 237(3A) of the Act is relevant in determining whether a group of employees who will be covered by an enterprise agreement was fairly chosen. It provides as follows:

"If the agreement will not cover all the employees of the employer or 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."

• [24] In Aerocare Flight Support Pty Ltd v TWU,[9] a Full Bench of the Commission summarised a number of principles from earlier decisions in relation to whether a group of employees was "fairly chosen" (references omitted):[10]

● a Member's decision as to whether or not they are satisfied that the group of employees covered by an agreement was "fairly chosen" involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense can be characterised as a discretionary decision;

● once it has been determined that an agreement does not cover all of the employees of the employment, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors;

● if the group of employees covered by the agreement is geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen; conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen;

● however while the question of whether the group of employees covered is geographically, operationally or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen;

● the selection of the group of employees to be covered on some objective basis, as opposed to an arbitrary or subjective basis, is likely to favour a conclusion that the group was fairly chosen;

● the relevant considerations will vary from case to case, but the word "fairly" suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair; and

● it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement's coverage and the employees excluded."

• [25] In most enterprises, there is unlikely to be only one fair manner of selecting the class of employees to be covered by an enterprise agreement. It may be the case that different classes of employees may be equally described as fair in the sense that no manifest unfairness arises from their selection. In the context of an application for a majority support determination, the Commission's task in ensuring that a group of employees was "fairly chosen" is not to determine the scope of an enterprise agreement, but to guard against unfairness by being satisfied that the group can be described, in all circumstances, as "fairly chosen".[11]

• [26] When determining whether a group of employees has been fairly chosen, the Commission may have regard to matters such as the way in which the employer has chosen to organise its enterprise and whether it is reasonable for the excluded employees to be covered by the enterprise agreement, having regard to the nature of the work they perform and the organisational and operational relationship between them and the employees who will be covered by the enterprise agreement.[12]

• [27] Distinctiveness within the meaning of s 237(3A) of the Act is necessarily a relative, not absolute, concept, and requires a comparison between the employees who will be covered by the proposed agreement and those who will not.[13]

• [28] Geographical distinctness is concerned with the geographical separation of the employer's various work sites or work locations, rather than a separation of workplaces within the same work site or work location.[14] Geographic distinctiveness requires a consideration of the work locations of those employees who would be covered by the proposed enterprise agreement and other employees of the employer who would fall outside the proposed scope of coverage.[15]

• [29] As to operational distinctness, the term "operational" refers to an industrial or productive activity.[16] The performance of a different role, task, skill or function is not sufficient to establish operational distinctiveness.[17]

• [30] The following propositions are relevant to the determination of whether a group of employees is organisationally distinct (references omitted):[18]

"● the term "organisation" refers to the manner in which the employer has organised its enterprise in order to conduct its operations;

● the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;

● however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and

● most businesses have organisation structures which will allow organisationally distinct groups to be identified."

• [31] The Electrical Apprentices do not comprise all of the employees of Hunternet. Accordingly, I must, in deciding whether the Electrical Apprentices were fairly chosen, take into account whether the Electrical Apprentices are geographically, operationally or organisationally distinct (s 237(3A) of the Act). This requires a comparison between the employees who will be covered by the proposed agreement and those who will not.[19]

[32] The Electrical Apprentices do not constitute a geographically distinct group of employees. First, they work at the same locations as many other apprentices and trainees placed by Hunternet with host employers. Second, they are deployed across a variety of sites, primarily within the Hunter Region and Central Coast. Third, albeit less significantly, one Electrical Apprentice is placed with a host employer in Western Australia.

[33] Nor are the Electrical Apprentices organisationally distinct. Hunternet organises its operations around host employers rather than by trade or traineeship type. Each Workforce Development Officer is responsible for managing all aspects of the apprentices and trainees placed with a particular host employer, including human resources, industrial relations, training, safety, and payroll, regardless of the trade. While the Electrical Apprentices perform electrical work under the supervision of qualified tradespeople, they typically work alongside other Hunternet apprentices and trainees at most sites. For example, at HBT Waratah Engineering, Electrical Apprentices work together with Hunternet's mechanical and fabrication apprentices on the maintenance of the same mining equipment. This work is carried out in an integrated manner within a mixed-trade workshop environment.

[34] The Electrical Apprentices are also not operationally distinct. The Electrical Apprentices work in Hunternet's industrial or productive activity of placing apprentices/trainees with host employers, but so do all of Hunternet's apprentices/trainees. Although the Electrical Apprentices all perform electrical work and are supervised by qualified electricians in a range of different host employer enterprises, the fact that many of the Electrical Apprentices work alongside other Hunternet apprentices and trainees in integrated operations at host employers supports the conclusion that they do not work in their own operational group and are not operationally distinct.

[35] I have taken into account that a majority of the Electrical Apprentices support bargaining for an enterprise agreement with Hunternet. However, I must also consider the interests of those apprentices and trainees who would be excluded from the proposed agreement, as well as Hunternet's interests. In my view, it would not be reasonable to exclude non-electrical apprentices and trainees from coverage, given the nature of their work and their organisational and operational integration with the Electrical Apprentices. Nor would it be in Hunternet's interests to have approximately one-quarter of its apprentices and trainees negotiating a separate enterprise agreement, particularly where many of them work alongside one another at the same host employers. Regardless of the outcome of such bargaining, it would not enhance productivity within Hunternet's business.

[36] I accept the CEPU's submission that there is a rational basis for selecting New South Wales and the Australian Capital Territory as the geographical scope of the proposed agreement, due to mutual recognition arrangements for electrical trades employees across those jurisdictions. However, this geographic scope has limited relevance to Hunternet's operations, which are primarily concentrated in the Hunter Region and Central Coast.

[37] The fact that other group training organisations have entered into enterprise agreements covering electrical apprentices does not assist in determining whether the Electrical Apprentices in this case were fairly chosen. Many of those agreements apply in contexts where the employer engages only electrical apprentices. Whether a particular group of employees has been fairly chosen depends on the specific circumstances of each case, including the nature of the business and the work performed by its employees.

[38] Having regard to all the circumstances, my overall evaluative judgment is that the group of employees proposed to be covered by the enterprise agreement - Electrical Apprentices - was not fairly chosen. The absence of geographical, organisational or operational distinctiveness weighs against such a finding. While the interests of the Electrical Apprentices supports the making of a majority support determination, those interests must be balanced against the interests of the excluded apprentices and trainees, and of Hunternet itself. Given the way Hunternet has structured its operations, I do not consider it reasonable for the excluded apprentices and trainees to fall outside the scope of the proposed agreement, especially in light of the nature of their work and their integration with the Electrical Apprentices. This weighs against a finding that the Electrical Apprentices were fairly chosen.

[39] Because I am not satisfied that the Electrical Apprentices were fairly chosen, the application for a majority support determination must be dismissed.

L. Hamilton, of counsel, instructed by A. Aghazarian, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

K. Thomson, solicitor, for Hunternet Group Training Limited

[1] [2025] FWC 2324

[4] Hearing Book at p 103[46]. Mr Couper challenged this evidence in his statement in reply: Hearing Book at p 931[4.4(c)]

[6] For example, Hearing Book at p 41[5.7]

[7] Cimeco Pty Ltd v CFMEU & Ors [2012] FWAFB 2206 at [12]

[8] [2012] FWAFB 2206

[9] [2017] FWCFB 5826

[11] CFMEU v ResCo Labour & Training Pty Ltd [2012] FWAFB 8461 at [35]

[12] CEPU v Marine Technicians Australia Pty Ltd [2022] FWC 1112 at [80], applying Cimeco Pty Ltd v CFMEU & Ors [2012] FWAFB 2206

[13] INPEX Australia Pty Ltd v AWU [2021] FWCFB 1038 at [33]

[14] AWU v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 at [13]

[15] INPEX Australia Pty Ltd v AWU [2021] FWCFB 1038 at [40]

[16] AWU v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 at [44]

[17] QGC v AWU [2017] FWCFB 1165 at [44]

[18] Aerocare Flight Support Pty Ltd v TWU [2017] FWCFB 5826 at [27]; endorsed by the Full Court of the Federal Court in Aerocare Flight Support Pty Ltd v TWU [2018] FCAFC 74 at [12]

[19] INPEX Australia Pty Ltd v AWU [2021] FWCFB 1038 at [33]

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