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[95]
[2026] FWC 1252
General information, not legal advice.
Fair Work Commission
2026-04-10
Original judgment source is linked above.
s.437 - Application for a protected action ballot order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Proposed protected action ballot of employees of Stowe Australia Pty Ltd
[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Stowe Australia Pty Ltd (Stowe).
[2] On 2 April 2026, the Commission was advised that Stowe objected to the Application.
[3] In the circumstances, I listed the matter for hearing on 9 April 2026.
[4] The CEPU relied upon the Form F34B - Declaration in support of an application for a protected action ballot order by Mr Frederick Barbin, Assistant Secretary of the CEPU, Electrical Division, NSW & ACT Branch dated 31 March 2026 and a witness statement by Mr Barbin dated 9 April 2026. Mr Barbin gave evidence at the hearing and was cross-examined by Stowe's legal representative.
[5] Stowe relied upon a witness statement by Mr Mark Decker, Construction Manager in the Sydney Projects Division at Stowe dated 9 April 2026. Apart from some paragraphs that Stowe did not press, Mr Decker's witness statement was admitted into evidence without objection by the CEPU. Mr Decker was not required for cross-examination.
[6] The factual background of the matter can be largely derived from email correspondence exchanged between the parties which was in evidence before me.
[7] The employees who are subject to the application before me are covered by the Stowe Australia Sydney Projects Division & ETU NSW/ACT Construction Union Agreement 2022-2025 (the Agreement). The Agreement commenced operation on 16 May 2023 and has a nominal expiry date of 31 October 2025. Clause 5 of the Agreement provides that it applies to all employees of Stowe employed pursuant to the classifications in Schedule A when they perform work in New South Wales and the Australian Capital Territory, but does not apply where Stowe has an existing enterprise agreement or where a Project Agreement applies. Employees last received a payrise under the Agreement on 1 May 2025.
[8] By letter dated 17 December 2025, the CEPU made a request to bargain with Stowe in accordance with section 173(2A) of the FW Act. In the letter, the CEPU requested that Stowe issue a notice of employee representational rights (NERR) and that a bargaining meeting occur in the week commencing 5 January 2026.
[10] By email dated 23 December 2025, Mr Scott Gandy, Director/General Manager NSW/ACT/WA of Stowe wrote to the CEPU acknowledging the CEPU's letter. Mr Gandy did not respond to the requests in the CEPU's letter but referred to the SIEA Application as follows:
This application seeks an SIEA which would allow collective bargaining for an enterprise agreement to address the replacement of rates, allowances, conditions, and other matters in respect of Sydney Projects Division employees. It is open to the union to consent to the application (noting that the union has indicated that it wanted to pursue a multi-employer enterprise agreement).
If you have any questions or wish to discuss don't hesitate to contact me.
[12] By letter dated 29 January 2026, Maurice Blackburn Lawyers (MBL) on behalf of the CEPU, wrote to Sparke Helmore Lawyers (SHL), Stowe's legal representatives. This letter referred to the CEPU's correspondence of 17 December 2025 and Stowe's correspondence of 23 December 2025. The letter noted that Stowe had not issued the NERR and requested that it do so no later than 5 February 2026. The letter foreshadowed that the CEPU would consider making an application for a bargaining order under s.229 without further notice to Stowe if Stowe did not issue the NERR and comply with its legal obligations.
[13] By letter dated 5 February 2026, SHL wrote to MBL. The letter referred to the SIEA Application and noted that the CEPU had not formally communicated its position in relation to that application. The letter expressed concern that the demand made by the MBL letter was for the collateral purpose of undermining the SIEA Application and that any parallel bargaining for a different enterprise agreement covering the same employees will be needless and counter productive. The letter concluded by asking for the CEPU's position in respect of the SIEA Application and for the CEPU to explain why bargaining for a single-enterprise agreement would be efficient and meet the objects of the FW Act given the concerns identified by SHL.
[14] MBL did not respond to this letter but made an application for a bargaining order on behalf of the CEPU on 10 February 2026. This application is listed for hearing in May 2026 and seeks orders including that Stowe issue a NERR, recognise the CEPU as a bargaining representative and participate in bargaining meetings with the CEPU at least once a fortnight.
[15] On 20 February 2026, Mr Decker sent an email to Mr Barbin which enclosed an update to employees about the SIEA Application. The email concluded:
Together, you and I, surely should be able to reach an arrangement to bargain for an agreement that covers the Stowe Sydney Construction employees performing major Construction works with a value greater than $125m within County of Cumberland.
Let me know your thoughts and look forward seeing your availability to discuss.
[16] On 27 February 2026, Mr Decker received an email from Mr Barbin which appeared to be in response to his email of 20 February 2026. The email stated, 'Hi Mark' but was otherwise blank. Mr Barbin gave evidence that he recalled preparing an email stating that the CEPU was not interested in negotiating an agreement with the scope proposed by Stowe and making a further request to bargain for an enterprise agreement with the same scope as the Agreement. Mr Barbin said that it appears that the email was mistakenly sent without the text, that he did not identify this at the time, and that he does not recall how this occurred.
[17] On 26 March 2026, the CEPU held a meeting of its members employed in Stowe's Sydney Projects Division. The members endorsed a log of claims for the proposed enterprise agreement and requested that the CEPU formally write to Stowe to provide the log of claims and reiterate its request that the NERR be issued and bargaining commence. The members further endorsed the making of an application for a protected action ballot if Stowe did not agree to bargain.
[18] At 7:53am on 27 March 2026, Mr Barbin sent an email to Mr Gandy and Mr Chris Madson at Stowe containing the CEPU's log of claims and requesting that Stowe issue a NERR and arrange a bargaining meeting without delay. The email concluded by stating that if the CEPU did not hear from Stowe or Stowe refused the CEPU's request for a bargaining meeting, the CEPU would be applying for a protected action ballot order.
[19] At 12:41pm on 27 March 2026, Mr Decker sent an email to Mr Barbin following up his correspondence of 20 February 2026. Mr Decker stated that employees had made a lot of enquiries about bargaining for a new agreement covering Sydney Projects Division employees, so he was keen to better understand the CEPU's position, including whether the CEPU would be prepared to bargain for a single enterprise agreement for Sydney Projects Division employees within the classifications in Schedule A of the Agreement who perform 'electrical and communication work for Construction Projects (as defined) in the County of Cumberland' with 'Construction Projects' defined as 'construction, fitting-out, renovation, maintenance, repair, demolition, alteration, commissioning, or decommissioning of a structure... with an initial construction contract value of $125 million or greater'.
[20] Mr Barbin replied to Mr Decker's email at 3:39pm on 27 March 2026. In his email, Mr Barbin observed that Mr Decker's email suggested that Stowe will only bargain with the CEPU for a single enterprise agreement if the CEPU agrees to a scope which is significantly narrower than the scope of Agreement. Mr Barbin said that this is the same scope sought in the SIEA Application and would leave some employees not covered by any enterprise agreement. Mr Barbin attached the email that he had sent to Mr Gandy and Mr Madson that morning and concluded the email as follows:
Our Log of Claims makes clear that we do not want to scope of the agreement to change. If Stowe wishes to change the scope of the agreement, it is free to put it forward in its own log of claims.
We take it from your email that Stowe will not be arranging a bargaining meeting for next week. As such, we will be applying for a protected action ballot order on Monday.
[21] At 5:46pm on 27 March 2026, Mr Gandy sent an email in the following terms to Mr Barbin:
I refer to your below email sent at 7.54am this morning demanding Stowe respond by COB today confirming that it will attend a bargaining meeting and failing which you will apply for a PABO.
It is entirely unreasonable for you to demand a response to these matters in this timeframe in circumstances where the Stowe Australia Sydney Projects Division & ETU NSWACT Construction Union Agreement 2022-2025 passed its nominal expiry date on 31 October 2025, you provided the union's log of claims at 7.54am this morning and there is an ongoing dispute between the union and Stowe currently before the Fair Work Commission about these very matters.
Stowe will consider the matters you have raised and provide a substantive response to your email next week.
[22] Mr Decker replied to Mr Barbin's email at 9:07pm on 27 March 2026. Mr Decker said that his initial email inquiry from 20 February 2026 remains 'somewhat unanswered' and reiterated the following question:
Would the Union be prepared to bargain for a single enterprise agreement for Sydney Projects Division employees within the classifications in Schedule A of the current agreement who perform electrical and communication work for Construction Projects (as defined) in the County of Cumberland?
[23] At 8:52am on 30 March 2026, Mr Barbin sent an email to Mr Decker confirming the CEPU's position that the coverage of the proposed enterprise agreement remains the same as the coverage of the Agreement.
[24] At 7:26pm on 31 March 2026, the CEPU made an application for a protected action ballot order.
[25] Section 437 of the Act provides as follows:
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
[27] There is no dispute between the parties that an application has been validly made under s.437 including that there has been a notification time in relation to the proposed enterprise agreement. Under s.173(2)(aa), the notification time was when Stowe received a request to bargain from the CEPU on 17 December 2025 under s.173(2A). Relevantly, the CEPU may only make a request under s.173(2A) if the proposed agreement will cover the same, or substantially the same, group of employees as the current agreement, as required by s.173(2A)(d). The CEPU's request met the condition in s.173(2A)(d) by seeking that employees currently covered by the Agreement will be covered by the proposed agreement. I am therefore satisfied that the requirements of s.443(1)(a) have been met.
[28] The matter which is in dispute is whether the the Commission can be satisfied, as required by s.443(1)(b), that the CEPU has been, and is, genuinely trying to reach an agreement with Stowe.
[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.
[30] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Ors,[3] the Full Bench reviewed the authorities in relation to s.443(1)(b) and made the following observations:
[57] Whether an applicant 'has been, and is, genuinely trying to reach an agreement' is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad) (citations omitted)
[33] The steps that a bargaining representative might be expected to have taken to demonstrate it has been, and is, genuinely trying to reach agreement will depend on the circumstances. Those circumstances are likely to include the stage that the bargaining has reached and the behaviour of the employer and other bargaining representatives. At early stages in bargaining, the claims of a bargaining representative and the agreement it proposes may reasonably be "inchoate" and might consist of no more than issues or topics that have been raised for discussion and not documented in any way. That fact will not necessarily or even commonly be indicative of a bargaining representative not genuinely trying to reach an agreement for the purposes of s 443(1)(b). If the employer refuses, or is reticent, to engage in bargaining, there may be limited actions available to other bargaining representatives to progress the goal of reaching agreement. Again, of itself, that is unlikely to suggest that other bargaining representatives are not genuinely trying to reach agreement. Its efforts will have been stymied by the employer.
[34] An allegation that an application for a protected action ballot order is premature does not, of itself, provide a basis for concluding that the applicant for the order has not been, or is not, genuinely trying to reach agreement. The Act envisages that protected action might be taken early in bargaining. The Commission must simply consider whether, in light of the circumstances operating at the time of its decision, the applicant has been, and is, genuinely seeking agreement. The reference to "premature applications" in Total Marine Services has been doubted or not followed in subsequent decisions, particularly JJ Richards (FWAFB), Farstad Shipping and Esso Australia Pty Ltd v Australian Manufacturing Workers' Union [2015] FWCFB 210; (2015) 247 IR 5. Kuiper did not suggest we should follow the reasoning in the fourth and fifth sentences of paragraph [32] of Total Marine Services.[5]
[32] The CEPU submitted that I can be comfortably satisfied that it has been, and is, genuinely trying to reach an agreement with Stowe, taking into account all of the steps which it has undertaken to secure a new agreement for its members, namely:
[33] Stowe submitted that the CEPU's failure to engage with the issues that it raised both directly and through its in legal representatives in correspondence dated 23 December 2025, 5 February 2026, 20 February 2026 and 27 March 2026 do not support a finding that it has been, and is, genuinely trying to reach an agreement with Stowe. Stowe submitted that in this correspondence, it indicated a willingness to change its position by proposing that the parties discuss a single enterprise agreement with a different scope to the Agreement. Stowe submitted that in refusing to respond or meet with it to discuss the scope of a single enterprise agreement, the CEPU could not be said to be genuinely trying to reach agreement with it.
[34] I propose to deal with Stowe's submissions by examining each of the relevant pieces of correspondence that Stowe relies upon. Stowe's email of 23 December 2025 purported to respond to the CEPU's letter of 17 December 2025 but did not do so in any substantive way. Stowe's email did not in any way respond to or engage with the CEPU's request that Stowe issue a NERR and that a bargaining meeting occur in the week commencing 5 January 2026. Stowe's email referred to the SIEA Application without explaining the relationship between that application and the CEPU's request to bargain. In my view, no response was warranted from the CEPU to correspondence which was comprehensively unresponsive to its request to bargain. In my view, there is nothing unreasonable about the CEPU's actions in this regard and the CEPU's actions are not indicative of an unwillingness to genuinely reach agreement with Stowe.
[35] SHL's letter to MBL dated 5 February 2026 was in essence, an invitation to the CEPU to establish to Stowe's satisfaction why a single enterprise agreement was a more appropriate vehicle to secure the terms and conditions of its members compared to the multi enterprise agreement which Stowe is seeking through the SIEA Application. Such matters may well be relevant for the purpose of determining the SIEA Application. However, in this application, the CEPU is required to show that has been, and is, genuinely trying to reach an agreement with Stowe in relation to the proposed agreement. For the purpose of satisfying s.443(1)(b), the CEPU is not required to establish that bargaining for a single-enterprise agreement would be more efficient and meet the objects of the FW Act compared to a multi-enterprise agreement, nor is it required to engage with Stowe about these matters.
[36] Further, it is not known if the authorisation sought in the SIEA Application will be made as whether the application meets each of the relevant requirements of the FW Act are matters which are yet to be determined. If the authorisation sought in the SIEA Application is made by the Commission, s.172(5)(b) prohibits the employers and employees covered by the authorisation from bargaining for a single enterprise agreement while the authorisation is in force, which is either for a minimum period of 12 months or earlier if the SIEA agreement is made before that time. However, there is no such restriction before an authorisation is made. In other words, employers and employees who are sought to be covered by a SIEA application are not prevented from making a single enterprise agreement before such an application is determined. Taking these matters into account, I am not satisfied that the CEPU's failure to respond to SHL's letter establishes that the CEPU is not genuinely trying to reach agreement with Stowe.
[37] In relation to Stowe's correspondence of 20 February 2026, I accept Mr Barbin's evidence that he recalled responding to Mr Decker's email but that he did not identify that his email was sent without text at the time it was sent. Given the importance to Stowe of engaging with the CEPU about the scope of the proposed agreement, I am surprised that Mr Decker did not point out to Mr Barbin on 27 February 2026 that the body of his email was missing and follow up his response.
[38] Mr Decker's emails of 20 February and 27 March 2026 sought to hold discussions with the CEPU about a bargaining for an agreement with a reduced scope. There is no evidence before me about why Stowe wants to change the scope of the agreement. However, there is evidence before me from Mr Barbin that confining the scope of the Agreement to major construction works with a value greater than $125 million will exclude approximately 60 out of 200 employees from the proposed agreement. Having initiated bargaining on behalf of all of its members covered by the Agreement, it is difficult for me to understand how the CEPU could be criticised for refusing to engage with Stowe about a proposal which would exclude around thirty per cent of its members from coverage of the proposed agreement.
[39] Further, it is uncontroversial that the scope of an enterprise agreement is a matter that can be negotiated in bargaining. It is clear that from Mr Decker's correspondence that Stowe wanted the discussion about scope to take place outside of bargaining. Such discussions have the potential to exclude employees who are affected by Stowe's proposed scope, particularly if those employees are likely to appoint an employee bargaining representative other than the CEPU. Taking these matters into account, I am not satisfied that the CEPU's failure to engage with Stowe about the scope of a proposed agreement outside of a bargaining meeting establishes that the CEPU is not genuinely trying to reach agreement with Stowe.
[40] Finally, in relation to Mr Gandy's email of 27 March 2026 alleging that it was entirely unreasonable for the CEPU to demand a response to the email it sent that morning, I do not accept this. The CEPU's email simply requested that Stowe issue a NERR and arrange a bargaining meeting without delay. These are requests that the CEPU had previously made on 17 December 2025 and 29 January 2026 and are currently the subject of bargaining order proceedings. Mr Barbin's evidence is that the employees covered by the Agreement are due to receive a payrise on 1 May 2026. Given all of these matters, Stowe should have been in a position to respond to the request that it issue a NERR and arrange a bargaining meeting in a timely manner. There is no indication that Stowe provided a response to these matters before the application for a protected action ballot order was filed on 31 March 2026. Mr Decker gave evidence that Stowe sought some time to review and consider the log of claims before responding to the email to Mr Gandy including because of the complexity relating to some of the matters. However, a response to the log of claims was not required by the CEPU's email.
[41] In my view, the evidence establishes that the CEPU has been, and is, genuinely trying to reach agreement with Stowe by making a request to bargain on 17 December 2025 and requesting bargaining meetings on 17 December 2025, 29 January 2026 and 27 March 2026. The matters relied on by Stowe do not either individually or collectively establish that CEPU has not been, and is not, genuinely trying to reach agreement with Stowe.
[42] On the basis of the material before me, I am satisfied that that all of the requirements in s.443(1) of the Act have been met.
[43] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.
[45] An Order has been separately issued in PR798538.
[46] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
[6] This is, in effect, 10 working days from the making of the Order and was the date sought in the application.
Printed by authority of the Commonwealth Government Printer
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Stowe Australia Pty Ltd [2026] FWC 1252
(2015) 247 IR 5
(2009) 189 IR 407