Fair Work Act 2009

s.229 - Bargaining order

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

PEER Education Employment & Training Ltd Trading AS PEER

Application for a bargaining order - application dismissed

• [1] On 26 November 2025, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application under s.229 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) seeking bargaining orders in relation to bargaining with PEER Education Employment & Training Ltd Trading AS PEER (PEER).

• [2] The CEPU sought an interim order that PEER not take any steps to conduct any ballot in respect of the proposed single employer agreement. Further, the CEPU sought by way of final relief the following:

1. That PEER advise each and every of its employees who would be covered by the proposed single employer agreement that earlier statements to the effect that the Applicant's Supported Bargaining Authorisation would result in bankruptcy of the employer and / or loss of their jobs were baseless and are withdrawn.

1. That PEER not take any steps to conduct any ballot in respect of the proposed agreement until the Application for Supported Bargaining Authorisation filed by the Applicant on 15 October 2025 has been determined.

1. That PEER take all reasonable steps to distribute an A4 flyer, authored by the Applicant to each and every employee who would be covered by the proposed single employer agreement.

• [3] Given that the ballot was to open 8:00am Friday 28 November 2025 and close 4:00pm Tuesday 2 December 2025, the matter was called on for urgent conference via telephone at 2:00pm Thursday, 27 November 2025.

• [4] I declined to make the interim order sought; however, the Respondent gave an undertaking that the votes cast would be secured but not counted pending my determination of this matter. The Applicant agreed that was an appropriate course of action and no formal interim order was made at that point.

• [5] The substantive matter was listed for hearing at 10:00am Monday, 1 December 2025 in person in Adelaide. Directions were issued for the submission of witness statements and submissions.

• [6] The material filed by the parties was collated into a Digital Court Book (DCB) and distributed prior to the hearing. At the hearing the parties agreed to my receipt of the DCB with weight being afforded to the contents in accordance with relevance and admissibility.

• [7] At the hearing the Applicant was represented by Mr Dean (of counsel) and Mr Fox. The Respondent was represented by Mr Smith (of counsel) and Ms Narayan. Permission was granted pursuant to s.596(2)(a) of the Act.

• [8] The Applicant submitted witness statements from Mr Alex Capper (CEPU Organiser)[1] and Mr Sunny Taylor-Johnson (an Apprentice employed by the Respondent)[2].

• [9] The Respondent submitted a witness statement[3] and a supplementary statement [4] from Ms Amanda Stenson (General Manager People and Culture).[5], a statement from Mr Brian Rungie (Chief Executive Officer).[6]

• [10] All the witnesses gave oral evidence.

• [11] The following additional documents were submitted during the hearing
• • A copy of PEER Board Meeting Minutes dated 19 June 2025[7]
• • A statement of Michael Watters[8]

• [12] Mr Taylor-Johnson's evidence went to his concern that the offer by PEER of a $250 incentive upon approval of the agreement was an inappropriate tactic being used to garner support for the approval of the single enterprise agreement.

• [13] Mr Capper's evidence went to the CEPUs desire to better care for apprentices (which is seen by them as a vulnerable cohort) and the pursuit of multi-employer bargaining to deliver a material improvement for apprentices. Mr Capper described the actions taken to secure support from apprentices for a multi-employer agreement in June 2025. Mr Capper advised that the CEPU had also participated in bargaining for a single enterprise agreement with PEER attending meetings on 6 and 20 August and 3 September 2025. Mr Capper noted the attendance of two employee bargaining representatives at those meetings. On 15 October 2025 Mr Capper advised PEER that "we will be holding off on any further bargaining for a single enterprise agreement whilst the Fair Work Commission considers our [s242] application...."

• [14] Ms Stenson's evidence went to the timeline, revealing that the replacement of the current single enterprise agreement was first considered around April 2025 with the NERR being issued on 2 July 2025 and bargaining meetings being held on 6 and 20 August and 3 September 2025. Ms Stenson was aware that the CEPU were seeking support from apprentices for a multi-employer agreement. On 18 July 2025, Ms Stenson advised Mr Capper that PEER did not want to bargain for a multi-employer agreement and would continue negotiating a single employer agreement. At the 3 September 2025 meeting a table of the impact of the CEPU's claims for a multi-employer agreement prepared by Mr Watters was tabled.[9]

• [15] Mr Rungie's evidence went to describing the operations and management of PEER, its desire to continue to have a single enterprise agreement and his account of discussions with the CEPU. Mr Rungie was an convincing witness; I accept his evidence generally and specifically as to PEERs desire to negotiate a single enterprise agreement to replace the current one and maintain control over its industrial arrangements, as opposed the negotiation being a device to avoid being bound by a multi-employer agreement in the future.

• [16] Mr Watters is PEERs 'numbers man.' He was also an impressive witness. I accept his version of the conversations about the impact of the CEPUs log of claims in respect of the multi-employer agreement. His analysis appears to be fact based and I am not persuaded that his narrative could reasonably be taken as threatening the jobs of PEER employees.

• [17] The relevant legislation of the Act are set out as follows:

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(2) An application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

Note: An employer that is required to give a notice of employee representational rights under subsection 173(1) cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice is given.

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non‑compliance with notice requirements may be permitted

(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(1) The following persons may apply to the FWC for an authorisation (a supported bargaining authorisation) under section 243 in relation to a proposed multi-enterprise agreement:

(b) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement.

Note: The effect of a supported bargaining authorisation is that the employers specified in it are subject to certain rules in relation to the agreement that would not otherwise apply (such as in relation to the availability of bargaining orders, see subsection 229(2)).

(a) the employers that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

(3) An application under this section must not be made in relation to a proposed greenfields agreement.

243 When the FWC must make a supported bargaining authorisation

(1) The FWC must make a supported bargaining authorisation in relation to a proposed multi-enterprise agreement if:

(a) an application for the authorisation has been made; and

(b) the FWC is satisfied that it is appropriate for the employers and employees (which may be some or all of the employers or employees specified in the application) that will be covered by the agreement to bargain together, having regard to:

(i) the prevailing pay and conditions within the relevant industry or sector (including whether low rates of pay prevail in the industry or sector); and

(ii) whether the employers have clearly identifiable common interests; and

(iii) whether the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process; and

(iv) any other matters the FWC considers appropriate; and

(c) the FWC is satisfied that at least some of the employees who will be covered by the agreement are represented by an employee organisation.

Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).

(2) For the purposes of subparagraph (1)(b)(ii), examples of common interests that employers may have include the following:

(b) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises;

(c) being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory.

Supported bargaining authorisation - declared industry etc.

(2A) The FWC must also make a supported bargaining authorisation in relation to a proposed multi-enterprise agreement if:

(a) an application for the authorisation has been made; and

(b) the employees specified in the application are employees in an industry, occupation or sector declared by the Minister under subsection (2B).

Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).

(2B) The Minister may, by legislative instrument, declare an industry, occupation or sector, if the Minister is satisfied that doing so is consistent with the objects of this Division set out in section 241.

(a) the employers that will be covered by the agreement; and

(b) the employees who will be covered by the agreement; and

(c) any other matter prescribed by the procedural rules.

(4) The authorisation comes into operation on the day on which it is made"

243A Restrictions on making supported bargaining authorisations

Relationship between this section and section 243

(1A) Section 243 has effect subject to this section.

Employees covered by single‑enterprise agreement that has not passed nominal expiry date

(1) The FWC must not make a supported bargaining authorisation specifying an employee who is covered by a single‑enterprise agreement that has not passed its nominal expiry date.

(2) A supported bargaining authorisation has no effect to the extent that it specifies an employee who is covered by a single‑enterprise agreement that has not passed its nominal expiry date.

(3) However, subsections (1) and (2) do not apply if the FWC is satisfied that the employer's main intention in making the agreement with the employees covered by it was to avoid being specified in a supported bargaining authorisation.

(4) The FWC must not make a supported bargaining authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work."

• [18] The relevant evidence is summarised below:

• [19] PEER is a Group Training Organisation which employs apprentices and trainees across the electrical, plumbing, construction and defence sectors. The Board of PEER comprises of representatives from the CEPU, Industry and has an independent Chairperson.

• [20] PEER is currently bound by the PEER Apprentice and Trainee Enterprise Agreement 2021[10] which was approved on 24 December 2021 and expired on 9 October 2025. The Agreement is a single Enterprise Agreement as defined in s172(2) of the Act and covers apprentices and trainees employed by PEER.

• [21] In April 2025, PEER commenced to consider options to deal with the (then) impending expiry of its single enterprise agreement.

• [22] In June 2025, PEER determined to commence negotiations for a replacement single enterprise agreement. A NERR was issued to the relevant employees on 2 July 2025. At about the same time, the CEPU commenced canvassing its members to determine the level of support for an application to the Commission for a supported multi-employer bargaining declaration.

• [23] On 18 July 2025, PEER and the CEPU discussed the topic of a multi-employer enterprise agreement. PEER advised that it did not support an Agreement of that type and would continue negotiating a single enterprise agreement.

• [24] Bargaining Meetings were held on 6 and 20 August and 3 September 2025. Participants at these meetings included representatives of PEER, the CEPU and employee bargaining representatives.

• [25] At the 3 September 2025 bargaining meeting, Mr Watters provided a financial analysis of the impact of the CEPUs claims. The CEPU suggest that Mr Watters mislead employees by suggesting that the Supported Bargaining Application would lead to the financial ruin of PEER and the loss of jobs, and this misrepresentation was a breach of PEERs good faith bargaining obligations. I have found that Mr Watters analysis appears to be fact based and I am not persuaded that his narrative could reasonably be taken as threatening the jobs of PEER employees.

• [26] On 14 October 2025, the CEPU lodged an Application for the FWC approval of a supported bargaining application pursuant to s.242. This matter was allocated to Deputy President Wright, and directions were issued on 13 November 2025 for the filing of material in March to May 2026.

• [27] On or about 14 October 2025 Mr Capper advised the CEPU would not continue to be involved in discussions about a single enterprise agreement.[11] . In response PEER advised the CEPU that it would continue to negotiate a single enterprise agreement and the CEPU was welcome to attend future meetings[12].

• [28] PEER continued to meet with the other bargaining representatives and progress the negotiations.

• [29] On 19 November 2025, PEER emailed employees proposed to be covered by the proposed single employer agreement a copy of the Agreement, explanatory material and other documents. The 'Access Period' commenced at this point. The employees were advised that the ballot would open on 28 November 2026 and close on 2 December 2026.

• [30] On 21 November 2025, Mr Fox emailed PEER and advised concerns that PEER had not met their good faith bargaining requirements. The key matters relied upon was the seeking of a s.242 supported bargaining authorisation, and the offering of inducements, the making of threats and misrepresentations. The email contained little detail.

• [31] On 24 November 2025, Mr Taylor-Johnson raised concerns with the CEPU about the appropriateness of employees being offered a $250 gift card if the single enterprise agreement ballot approved the Agreement.

• [32] On 24 November 2025, Mr Rungie responded to the letter of concerns rejecting the position put and detailing the reasons why the single enterprise agreement was the preferred option.

• [33] The Parties submissions are summarised as follows

• [34] The CEPU submits that:
  • It is a default bargaining representative is respect of the single enterprise agreement negotiations.
  • It notified PEER of its concerns and to the extent it did not it is appropriate that the requirement be waived pursuant to s.229(5) of the Act.
  • PEER has breached its good faith bargaining obligations by
    • putting the single enterprise agreement to ballot prior to the determination of CEPUs s.242 application.
    • Mr Watters has made misleading statement as to the effect of the CEPUs s.242 application.
    • offering a $250 sign on bonus has improperly offered an inducement, in breach of the good faith bargaining obligations.
    • PEER has misrepresented the effect of the proposed single enterprise Agreement to employees.

• [35] PEER submits that:
  • The CEPUs concerns notice has not complied with s.229(4) and the lack of detail did not allow PEER to adequately respond, and that it would be inappropriate to use s.229(5) to remedy any defect.
  • PEERs conduct in continuing to bargain for a single employer agreement is not a breach of its Good Faith Bargaining obligations.
  • The offering of a $250 voucher to employees if the single enterprise agreement is approved by the Commission is akin to a 'sign on bonus' and not a breach of the Good Faith Bargaining requirements.
  • PEER denies that employees were misinformed about the financial and employment impacts if a multi-employer enterprise agreement were made.
  • The Commission should not make any good faith bargaining orders

• [36] There is no suggestion that the CEPU is not entitled to make this application, other than the s.229(4) concerns discussed below.

• [37] At the conclusion of the hearing the Applicant asked that I make an interim order reflecting the undertaking previously given by the Respondent. After consulting the Respondent, I made an interim order pursuant to s.230 and s.589 of the Act, that the Respondent was to secure and preserve the votes cast and any electronic files associated with the ballot processes for the proposed enterprise agreement, scheduled to conclude at 4:00pm on 2 December 2025, but not proceed to examine or count the ballots until further order of the Commission.[13]

• [38] Despite its brevity, I accept that the letter from Mr Fox dated 21 November 2025 meets the requirements of 229(4) of the Act in respect of all matters alleged except for the allegation of 'misrepresentation'. On that topic, there was no detail provided about the alleged misrepresentation, subsequently, it was revealed that the concern was about the information provided about the interaction between the proposed single enterprise Agreement and the Award. The absence of this information deprived PEER of any possibility of addressing the issue in a timely manner. I am not persuaded that it is appropriate for me to use s.229(5) to remedy this defect, acknowledging that, in any event, if the proposed single enterprise agreement is approved the issue of misrepresentation can be raised as part of the s.185 approval process.

Threats re financial and or employment impact

• [39] With respect to the allegation that PEER threatened employees by stating that a multi employee agreement would cause financial and/or job losses, I am not persuaded on the evidence before me that those statements were made. I accept that Mr Watters provided an factual account of the impact of the CEPUs log of claims on the business, but this does not go so far as establishing that he threatened employees with loss of jobs or forecasted the demise of PEER.

• [40] There is no dispute that PEER offered employees a gift card of the value of $250 if the Agreement was approved. Such an approach is non-uncommon in my experience. I do not accept that this practice (commonly called a 'sign on bonus') represents unfair conduct on the part of PEER and thus, PEER's offer is not a breach of the good faith bargaining obligations.

• [41] Had the notice of concerns adequately described the alleged misrepresentation of the agreement to employees during the access period, I would not have exercised my discretion to make a good faith bargaining order. The issue appears to be one of drafting and I understand it was remedied internally after the issue was understood by PEER. It is also a consideration that could be raised in respect of an agreement approval application.

Interaction of s.242 application and single enterprise agreement negotiation

• [42] The final issue is PEERs continued pursuit of a single enterprise agreement in light of the CEPU application for multi-employer supported bargaining authorisation.

• [43] There does not appear to have been any previous judicial consideration of this topic.

• [44] The CEPU contend that PEERs desire to put the proposed single enterprise agreement to a vote is motivated by a desire to avoid having to bargain collectively with other employers. In my view, the facts and the law do not support this contention.

• [45] Firstly, at the time PEER first considered the replacement of its Agreement in April 2025, it was not aware of any s.242 application being mooted. Secondly, for a short period the CEPU was engaged in negotiation for a single enterprise agreement. Thirdly, the s.242 application was not made until October 2025. Fourthly, there is no guarantee that the CEPUs s.242 application will succeed, and it would appear from the FWC Directions there is little likelihood of any decision being made in the next six months. The current single enterprise agreement has now expired.

• [46] The evidence indicates that based on the CEPUs current multi-employer log of claims, PEER genuinely believes that its commercial interests are best met by running its own race using a single employer agreement. Whilst the CEPU may have a different view, the desire by PEER to continue to pursue a single employer agreement in the circumstances of this case is not a breach of the good faith bargaining obligations.

• [47] It also appears that Parliament has considered potential disputes of this nature with its insertion of s.243A(3) which provides a remedy where the main intention of an employer is to avoid being specified in a supported bargaining authorisation. In the event that CEPUs multi-employer supported bargaining authorisation is successful, that provision would provide a remedy if it can be shown that PEERs conduct was designed to avoid being specified in supported bargaining authorisation. On the case before me, I would not be so satisfied.

• [48] I have not been persuaded or found that the conduct of the Respondent is in breach of the requirements of s.228 and accordingly, the application is dismissed.

• [49] The interim order referred to above is rescinded with effect from 4.00pm (SA Time) 28 January 2026, this delay is intended to allow to permit the Applicant time to seek a stay order in the event that it seeks to appeal this decision (as was foreshadowed in closing submissions).
• [50] Postscript

• [51] As this is my final decision before I retire, I would like to take this opportunity to formally thank all of my Associates for their invaluable assistance, offer my sympathies to the representatives who have regularly appeared before me, and thank the other Members of the Commission (particularly those in Adelaide) for their advice and camaraderie over the last decade.

[1] Exhibit CEPU 1, pages 228 to 236 of the DCB

[2] Exhibit CEPU 2, pages 242 to 243 of the DCB

[10] [2021] FWCA 730

[11] Email (undated) at page 107 of the DCB (appears to be responding to email below dated 14 October 2025)

[12] Email dated 18 November 2025 at page 109 of the DCB

[13] PR794500

Printed by authority of the Commonwealth Government Printer