[2026] FWC 824

Fair Work Act 2009

s.418 - Application for an order that industrial action by employees or employers stop etc.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V)

Dynamic Electrical Constructions Pty Ltd T/AS Dynelec Australia

Urgent application for orders that industrial action stop or not occur - employer response action (lockout) - employee claim action (industrial action in the form of 24 hour stoppages of work) - prior to and upon employees returning to work, authorised union officials conduct site safety inspections - whether employer response action was in 'response' to industrial action taken by relevant employees, or (or also) in response to site safety inspections - meaning of the phrase "is organised or engaged in as a response to industrial action" under s.411(1)(a) of the Fair Work Act 2009 - decision of Full Federal Court of Australia in Australian and International Pilots Association v Fair Work Australia and others [2012] FCAFC 65; (2012) 202 FCR 200 applied - employer response action lawful - application dismissed

[1] At 4:53pm on Tuesday, 10 March 2026, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed a Form F14, being an application under s.418 of the Fair Work Act 2009 (Act) for urgent orders that industrial action stop or not occur (418 Application). The industrial action (employer response action) being taken is a total lockout of CEPU members by Dynamic Electrical Constructions Pty Ltd t/a Dynelec (Dynamic) at its site (workshop) in Unanderra, New South Wales. Dynamic is a national system employer.

[2] Prior to Dynamic issuing lockout notices to employees, officials of the CEPU exercised their right of entry powers and attended upon Dynamic's workplace to investigate suspected contraventions of the Work Health and Safety Act 2011 (NSW) (WHS Act). In short, the CEPU says that, contrary to the terms of s.411(1)(a) of the Act, the employee lockout being undertaken by Dynamic is a 'response' to the exercise of the CEPU's right of entry powers (and engagement in safety inspections), as opposed to a 'response' to the industrial action taken by relevant employees.

[3] A directions hearing was conducted at 2:30pm on 11 March 2026, and directions were issued to program the matter for hearing. At the hearing at 2:30pm on 12 March 2026, Mr Lewis Hamilton, of Counsel, instructed by Mr Jack Dowling, Legal Officer, appeared with permission for the CEPU, and Mr Peter Willink, of Counsel, instructed by Ms Farah Rainey, Solicitor, and Ms Lisa Carey, Senior Associate, NECA Legal, appeared with permission for Dynamic.

[4] Prior to 5.00pm on 12 March 2026, I provided short ex tempore reasons for decision dismissing the 418 Application, and issued an order [PR797589] to that effect. This decision sets out my more detailed reasons.

[5] Based upon the evidence, I make the findings set out in paragraphs [6] to [27] below.

[6] The Dynelec (Australia) Enterprise Bargaining Agreement (AE520482), which reached its nominal expiry on 30 September 2025, applies to Dynamic and its employees. It covers the CEPU.

[7] Dynamic issued a Notice of Employee Representation Rights to all relevant employees on or around 29 July 2025, thus commencing bargaining for a new (replacement) single-enterprise agreement. The CEPU is a bargaining representative in respect of this proposed enterprise agreement. The first bargaining meeting occurred on 15 August 2025, and there have been several bargaining meetings since that date.

[8] On 14 October 2025, the CEPU applied for a protected action ballot order, and on 16 October 2025 the Commission issued same.

[9] On 28 November 2025, the CEPU sent an email to Dynamic, which relevantly reads:

"As I'm sure you are aware, our members are disappointed to say the least by your offer that has been tabled by the company this morning.

We look forward to a revised position by COB - Wednesday 3rd December.

[Next] Tuesdays [Bargaining] Meeting [set down for 2 December 2025] is cancelled. We respectfully wish to not carry out any further negotiations and will continue to exercise our right to take Industrial Action as we see fit while [Dynamic] prepares a further adjustment to their proposed offer."[1]

[10] That same day, Dynamic contacted its employer association, the National Electrical and Communications Association (NECA) for advice (from NECA legal) as to how to respond to any industrial action that may end up being taken by relevant employees. Dynamic was advised that it could respond to such industrial action by locking out relevant employees from the Dynamic workplace (i.e. subject to compliance with s.411 of the Act). NECA's advice (provided to Dynamic in writing on 1 December 2025), was accompanied by draft template (or standard form) letters to employees advising them that Dynamic would be locking them out of its workplace in response to them taking industrial action (Template Letters). NECA's advice to Dynamic also stated that Dynamic had instructed NECA that a lockout was Dynamic's preferred response option moving forward. Dynamic essentially put NECA's advice (and the Template Letters) in its back pocket, and decided to use same as a response (or strategy) to any industrial action actually taken by relevant employees moving forward.[2]

[11] On 4 December 2025, Dynamic advised the CEPU and relevant employees that should industrial action be taken, it will likely be responded to (at a time of Dynamic's choosing) by locking out such employees from Dynamic's workplace.

[12] On 12 December 2025, the CEPU sent an email to Dynamic, which relevantly reads:

"Your repeated references to employer response action are noted. Although entirely unnecessary, we appreciate Kris's consistency and commitment to ensuring no email goes out without a gentle reminder of lockouts."[3] (Referring to Mr Kris Musarevski, Chief Operating Officer, and Dynamic representative during bargaining)

[13] On 19 January 2026, the CEPU notified Dynamic that employees (for whom the CEPU is a bargaining representative) would commence taking employee claim action in the form of 24x1 hour consecutive (i.e. continuous or rolling) stoppages starting from midnight on 23 January 2026 and continuing indefinitely (CEPU Notice).

[14] On 22 January 2026, Dynamic asked NECA to update the Template Letters to make them ready to be issued to relevant employees upon their return to work (whenever that may be).

[15] During the period 19 to 22 January 2026, Mr Rikki Papesch, Chief Executive Officer, and Mr Musarevski, had discussions as to how Dynamic would respond to the industrial action being taken by relevant employees. It was agreed/decided/determined that Dynamic would take employer response action (by locking out relevant employees who took industrial action (and did not attend work)), when such employees returned to work. In other words, Dynamic would not be locking out relevant employees whilst such employees were themselves taking their own industrial action (i.e. employer response action would be pointless whilst rolling stoppages are occurring). Rather, Dynamic had determined that its response to the employees' industrial action would be deployed at a time of Dynamic's choosing, being when relevant employees returned to work (January 2026 Decision).[4] To be clear, I accept the evidence of Mr Papesch and Mr Musarevski that they made the January 2026 Decision (on behalf of Dynamic) jointly. At this time, there was no indication from the CEPU (or relevant employees) as to a date upon which striking employees would return to work.

[16] Between 23 January 2026 and 3 March 2026, relevant employees engaged in 8x1 hour stoppages between 6am and 2pm each working day. In other words, relevant employees did not perform any work during these hours, across a time period of five and a half weeks.

[17] On 17 February 2026, a CEPU Officer attended upon the Dynamic workplace to exercise right of entry for suspected contraventions of the WHS.[5]

[18] At 9:30am on 3 March 2026, two CEPU Officers attended upon the Dynamic workplace to exercise right of entry for suspected contraventions of the WHS.

[19] At 10:14am on 4 March 2026, two CEPU Officers attended upon the Dynamic workplace to exercise right of entry for suspected contraventions of the WHS.

[20] On 4 March 2026, relevant employees returned to work at around 6am. At around 9:15am, relevant employees were notified that Dynamic was to engage (per the January 2026 Decision) in employer response action in the form of a lockout of relevant employees commencing that day, and continuing indefinitely (i.e. as Dynamic had previously (or already) advised the CEPU and relevant employees as far back as 4 December 2025). Later that day, the CEPU applied to the Commission for an order to stop the employer response action. One of the grounds for the CEPU's application was that the notice of the lockout was given after the time that the lockout had commenced, contrary to s.414(5) of the Act.

[21] At 8:30am on 5 March 2026, two CEPU Officers attended upon the Dynamic workplace to exercise right of entry for suspected contraventions of the WHS.

[22] On 5 March 2026, at 4:55pm, Dynamic (through NECA legal) notified the CEPU and relevant employees that the employer response action was being withdrawn, and that employees would be paid their wages for the lockout period that had already occurred.

[23] At 8:10am on 6 March 2026, the CEPU filed a Notice of Discontinuance in respect of its s.418 application (filed on 4 March 2026). This was done without prejudice to any rights that Dynamic might have to commence employer response action moving forward (i.e. via the issuing of a new and compliant employer response action notice).

[24] Between 7:30am and 1:00pm on 6 March 2026, two CEPU Officers attended upon the Dynamic workplace to exercise a right of entry for suspected contraventions of the WHS. There were various interactions (orally and via text) between NECA Legal (on behalf of Dynamic) and the CEPU during this time relating to (or associated with) the CEPU's repeated attendance on site (over the last four days) for purported contraventions of the WHS Act, including the CEPU officers dragging out the safety inspections, making broad ranging document requests that lack scope or clarity, inspecting plumbing pipes, pointing to long grass as a risk, and otherwise hanging around the Dynamic workplace for no apparent good reason (i.e. being a hindrance).[6]

[25] Dynamic amended some dates on the Template Letters. On 6 March 2026, at 3:27pm, Dynamic sent a new notice of employer response action (lockout) to the CEPU, with a total lockout to commence on and from 9 March 2026 (Dynamic Notice). The same correspondence was issued to relevant employees at 3:57pm that day. It relevantly reads:

"We refer to the notice received on 19 January 2026 and to the industrial action taken on 23 January 2026 regarding employee industrial action (the Employee Notice).

In response to the industrial action covered by the Employee Notice, we put you on notice that any employee that engaged in such action from Friday, 23 January 2026 until Tuesday, 3 March 2026 excluding any scheduled RDOs and public holidays where applicable, will be the subject of a lockout by Dynamic Electrical Constructions Pty Ltd (Dynelec).

This action constitutes employer response action under s.411 of the Fair Work Act 2009 (Cth) (FW Act). To be clear, this industrial action is only in response to the aforementioned industrial action taken by eligible Dynelec employees (5 week and 2 days of striking).

This notice (the Employer Response Notice) is given in compliance with ss.414(5) and 414(6) of the FW Act and provides the nature of the employer response action and the day on which the action will commence.

Date on which the Employer Response Action will commence:

The relevant employees will be locked out of their employment with [Dynamic] (253-255 Princes Highway, Unanderra)."[7]

[26] The CEPU does not contend that the Dynamic Notice is in any way defective.

[27] On 9 March 2026, the lockout commenced, and on 10 March 2026, the CEPU filed its 418 Application (the subject of these proceedings). As at the time of the hearing before the Commission, relevant employees remain locked out of the Dynamic workplace until further notice.

Employer response action for a proposed enterprise agreement means industrial action that:

(a) is organised or engaged in as a response to industrial action by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who will be covered by the agreement; and

(b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and

(c) meets the common requirements set out in Subdivision B."

"FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot."

[30] In Australian and International Pilots Association v Fair Work Australia and others[8] (Pilot's Case), Justice Perram stated:

"154. The second category of actions consists of those set out in s 408 above, that is, that subset of all industrial action consisting of 'protected industrial action'. If the industrial action is protected, then the immunity conferred by s 415 arises. The third kind of protected industrial action specified in s 408(c) is 'employer response action'. This is defined in s 411 which must, however, be read with the definition of 'industrial action' contained in s 19. From ss 19(1) and 19(3) it will be seen that the only species of employer action which is covered by s 19(1) is a lockout. The scheme of Part 3-3 Division 2 is, therefore, one in which the only bargaining tool available to an employer is a responsive lockout.

155. The terms of s 411(a) make clear that, for industrial action to be employer response action, it must be 'organised or engaged in as a response to industrial action' by an employee or a bargaining agent of an employee (which includes a union). The words 'as a response' require only that the lockout be seen as causally connected to employees' industrial action. It does not have to be reasonable, proportionate or rational.

156. AIPA submitted that the evidence before this Court could not justify a finding that Qantas had engaged in response action. There is, it may be accepted, rhetorical force in the proposition that the lockout of the pilots could not sensibly be seen to have been done in response to their industrial action in wearing red ties and making announcements at the end of long haul flights. That action had no effect whatever on flight timetables. On the other hand, the industrial action being pursued by the baggage handlers and maintenance crews was having an obvious and direct effect on Qantas' capacity to carry its passengers in a timely and reliable fashion. Viewed from that perspective, it is not difficult to see the origin of AIPA's argument that the lockout was, in truth, a response to the action of the baggage handlers and maintenance crews and was unrelated to their actions in wearing red ties and making announcements.

157. Despite the superficial attraction of the argument it should nevertheless be rejected. The principal reason for this is the one set out above, that is, the fact that the response required by s 411 does not have to be reasonable, proportionate or rational. Indeed, it would be a response under s 411 even if Qantas' motives were shown to be, as in the case of the pilots they probably were, opportunistic. Further, s 411 neither requires that the response action be taken solely in response to the industrial action of the party with whom the proposed enterprise agreement may be made nor that it be predominantly or even substantially in response to the employee claim action. All that is required is that it is a response. The threshold is low.

167. AIPA's argument depended for its success on the assumption - ultimately unsound in my view - that Qantas' actions could not be a response to both. It was by that mechanism that it argued that proof of one disproved the other. But the two sets of considerations were not mutually exclusive. They could be mutually exclusive only if there were a requirement that response action had to be reasonable or non-opportunistic but there is no such requirement."[9]

[31] Section 411 of the Act requires that employer response action be in response to "industrial action" (as defined by s.19 of the Act). Employer response action may be taken even if the industrial action being responded to is not employee claim action (as defined by s.409 of the Act).[10] The only employer response action that is authorised to be taken under the Act is a lockout.

[32] The CEPU carries the onus to persuade me that the employer response action being taken by Dynamic is not in "response" to the industrial action (in this case, employee claim action) taken by relevant employees. Given there is no reverse onus, and the bar is low (from a causation perspective), the CEPU has a high bar to reach. Issues such as proportionality (i.e. attributing causation or liability, in percentage terms, to different causative events), or an asserted 'overwhelming' cause (or causative event), do not arise. The mind of the relevant decision-maker/s is not only relevant, but probative.[11] As long as employer response action is in response to industrial action, the fact that it may (or is ultimately be found to) be also in response to something else (e.g. a workplace complaint, a disciplinary process, or a safety inspection) is not relevant, in that the employer response action (in the form of a lockout) will still be in response (in whole or in part) to the industrial action.

[33] The CEPU's primary contention is that the decision by Dynamic to engage in employer response action was only made after CEPU officials exercised right of entry for suspected safety contraventions, and was thus taken in response to the safety inspections (and not in response to industrial action). Noting the January 2026 Decision, this contention is not supported by the timeline of events, or the evidence. It must be rejected.

[34] The CEPU's alternative contention is that the decision by Dynamic to engage in employer response action was made because employees returned to work. Ultimately, this contention appeared to fizzle out when scrutinised. As Dynamic submitted, the timeline and overall circumstances do not assist the CEPU's contention in this regard. The same outcome arises whether or not the CEPU relies upon the right of entry, or the employee's return to work, or both. The inescapable position is that even taking the CEPU's case at its highest, the employer claim action is still being taken (or also being taken) in response to the industrial action taken by relevant employees. That is enough to satisfy s.411(1)(a) of the Act.

[35] Under cross-examination, both Mr Papesch, and Mr Musarevski, conceded that they were frustrated with the CEPU attending upon their workplace four days in a row to investigate suspected safety breaches. Mr Muraveski gave evidence that after determining (in his opinion) that the safety issues being raised by the CEPU were a fishing expedition, he himself called SafeWork NSW to attend upon the Dynamic workplace to review the suspected safety breaches being raised by CEPU officials. SafeWork NSW (having conducted a safety review themselves over a couple of hours) left the workplace issuing no improvement notices or warnings, and raising no concerns. Indeed, SafeWork NSW has given no indication of it needing (for any reason) to return to the Dynamic workplace any time soon. Mr Musarevski's evidence is that one of the issues raised by the CEPU was that the grass (lawn area) had become overgrown, and needed to be mowed to reduce 'risk', with the CEPU requesting a copy of the lawn mowing schedules for the grassed areas of the site. He also gave evidence that issues around the testing and tagging of power sources and equipment (by reference to Australian Standards) will arise in (almost) any office or work premises (e.g. the office kettle), and are hardly a concern to be resolved on some sort of immediate, urgent, condensed or fast tracked timetable, or via scattered demands for the timely production of wide ranging documentation. In Mr Muraveski's view, if safety was such a big issue for the CEPU at the Dynamic workplace, the CEPU had plenty of time (whilst employees were taking industrial action for five a half weeks) to engage with same. The 17 February 2026 safety inspection aside, the fact that the CEPU had chosen to get all vigorous and serious about safety at the same time that relevant employees were returning to work was, to say the least, very suspicious and unlikely a coincidence.

[36] It is also apparent that both Mr Papesch and Mr Musarevski were frustrated by employees (whilst taking industrial action) loitering around outside Dynamic's office premises on footpaths and roadways, using horns and amplifying speakers (the latter used to loudly broadcast propaganda and profanities). These individuals were ultimately dispersed by Police, and immediately packed up and vanished.

[37] The foregoing aside, it can equally be said that both Mr Papesch and Mr Musarevski were frustrated with the industrial action that was being taken, and the lack of progress in the bargaining negotiations towards a finalised outcome. Both the CEPU and Dynamic had been flagging to each other their intentions to engage in industrial action as early as 28 November 2025 (both orally, and in writing).[12] The evidence of both Mr Papesch and Mr Musarevski is that it was determined by them that Dynamic's industrial strategy in the lead up to the making of the proposed enterprise agreement was to fight fire with fire (per the January 2026 Decision). To that end, both Mr Papesch and Mr Musarevski completely denied that Dynamic's employer response action was organised or implemented by Dynamic by reason of (or in connection with) the CEPU exercising its right of entry powers under the WHS Act. These denials were not undermined at the hearing, and are wholly consistent with the documentary evidence around Dynamic seeking advice from NECA Legal in November 2025 (being a time that was well before any right of entry for purported safety breaches occurred).

[38] As stated in the Pilot's Case, s.411 of the Act only requires that response action be a response to industrial action. It does not require that employer response action to be:

(a) taken solely in response to industrial action; or

(b) predominantly (or even substantially) taken in response to industrial action.[13]

[39] Whatever way you cut it, the timeline of events, and the evidence of both Mr Papesch and Mr Musarevski, support a finding that the employer response action taken by Dynamic has been organised or engaged in as a response to industrial action taken by the CEPU and relevant employees. I equally find on the evidence before me that the employer response action taken by Dynamic otherwise wholly satisfies all of the requirements set out under s.411 of the Act.

[40] The CEPU's application under s.418 of the Act is unsustainable on both the facts and the law. It must be dismissed.

Mr Lewis Hamilton, of Counsel, instructed by Mr Jack Dowling, Legal Officer, appeared with permission for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant).

Mr Peter Willink, of Counsel, instructed by Ms Farah Rainey, Solicitor, and Ms Lisa Carey, Senior Associate, NECA Legal, appeared with permission for the Dynamic Electrical Constructions Pty Ltd t/as Dynelec (Respondent).

[1] Exhibit R3, Musarevski Statement, Annexure KM-1.

[2] Exhibit R2, Papesch Statement, at [5].

[3] Exhibit R3, Musarevski Statement, Annexure KM-6.

[4] At the time, Mr Rikki Papesch also consulted his Board Of Directors about the January 2026 Decision, who agreed with same. The January 2026 Decision is also consistent with the findings made at paragraphs [10]-12] of this decision.

[6] As summarised (with references to evidence) in the CEPU's Chronology (handed up during the hearing). See also Exhibit ETU-3, Strachan Statement, at [8]-[13], and Annexures "ES-4" and "ES-5".

[7] Exhibit R3, Musarevski Statement, Annexure KM-12.

[8] Australian and International Pilots Association v Fair Work Australia and others [2012] FCAFC 65; (2012) 202 FCR 200. In this case, the applicant union (AIPA) asserted that the employer response action by Qantas (lockout) was not being undertaken as a response to the industrial action of its member employees, but rather was in reality a response to the damaging industrial action being taken by two other unions. This contention was rejected, and the AIPA's case was dismissed.

[9] Ibid, at [154]-[157], and [167]. See also at [116]-[122], per Buchanan J.

[10] Australian and International Pilots Association v Fair Work Australia and others [2012] FCAFC 65; (2012) 202 FCR 200.

[12] Note also evidence of Mr Mitchell Brennan, CEPU Organiser and bargaining representative, under cross-examination.

[13] Australian and International Pilots Association v Fair Work Australia and others [2012] FCAFC 65; (2012) 202 FCR 200, at [154]-[157], and [167]. See also at [116]-[122], per Buchanan J.

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