Fair Work Act 2009

s.229 - Bargaining order

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

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a bargaining order under s.229 of the Fair Work Act 2009 (Cth) (FW Act) against Stowe Australia Pty Limited (Stowe) in relation to bargaining for an enterprise agreement to replace the Stowe Australia Pty Ltd - Sydney Western Division Single Enterprise Agreement 2022 (the Agreement).

• [2] The Agreement was approved by the Fair Work Commission (Commission) on 18 October 2022 and came into operation from 25 October 2022. The nominal expiry date of the Agreement is 18 October 2025. The Agreement currently covers 60 employees.[1]

[3] The application was filed on Saturday 7 March 2026 with a request that the matter be listed urgently on Monday 9 March 2026 given that a vote to vary the Agreement was scheduled to take place on Wednesday 11 March 2026. The effect of the proposed variation is to provide employees with a 4% pay rise from 18 October 2025 and to extend the nominal expiry date to 18 October 2026.

[4] The CEPU opposes the variation and made a request to bargain for a new agreement on 17 December 2025 pursuant to s.173(2A) of the FW Act. No bargaining has taken place in response to that request.

[5] The CEPU seeks the following orders under ss.230-231 of the FW Act:

(a) That Stowe be restrained from applying for approval of the proposed variation to the Agreement purportedly approved on 11 March 2026; and, or in the alternative:

(b) If an application for approval of the proposed varied Agreement is not made, or is made and withdrawn or refused, Stowe must:

(i) recognise the Union as a bargaining representative for a new agreement;

(ii) issue notice of representational rights under s.173 of the FW Act to employees who will be covered by the proposed agreement within 7 days of the making of these orders; and

(iii) meet with the Union at least fortnightly unless otherwise agreed commencing the week following the making of orders by the Commission, with meeting locations and times to be agreed between the parties;

(iv) be restrained for a period of 9 months from requesting that employees vote to approve a variation to the Agreement; and

(v) publish a notice to employees to the following effect:

The Fair Work Commission has made good faith bargaining orders requiring Stowe Australia Pty Limited to recognise the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) as a bargaining representative for a new agreement and engage in bargaining with the ETU.

Stowe has also been ordered to issue notices of employee representational rights to you. These set out your rights in relation to bargaining.

Stowe has been directed to attend bargaining meetings with the ETU at least fortnightly unless otherwise agreed.

Stowe has been restrained by the Commission from putting a variation of the current enterprise agreement to a vote for 9 months. This means bargaining can occur for at least this period.

[6] I listed the matter for a case management conference on 9 March 2026. Counsel for the CEPU sought an urgent hearing on 10 March 2026 which was opposed by Stowe. During the case management conference, Counsel for Stowe advised that Stowe would provide an undertaking that if employees voted in favour of the variation, it would not take any steps to make an application to the Commission for approval of the variation for a period of ten days. After considering the submissions of the parties including the undertaking provided by Stowe, I declined to set the matter down for hearing on 10 March 2026 and instead listed the matter for hearing on 19 March 2026.

[7] I made directions for filing and serving evidence and submissions at a subsequent case management conference on 11 March 2026.

[8] On 13 March 2026, the CEPU filed submissions and witness statements by:

1. Ms Emily Strachan, Senior Legal Officer, CEPU, Electrical Trades Union Division, New South Wales Branch;
2. Mr Pablo Duarte, CEPU Delegate and Electrician - Leading Hand, at Stowe Sydney Western Division; and
3. Mr Fred Barbin, Assistant Secretary, CEPU, Electrical Trades Union Division, New South Wales Branch

[9] On 17 March 2026, Stowe filed submissions and witness statements by:

1. Mr Adam Ingleton, Branch Manager, Stowe Sydney Western Division; and
2. Mr Robert Ellison, CEPU member and Electrician - Leading Hand, at Stowe Sydney Western Division

[10] On 18 March 2026, the CEPU filed a statement in reply by Mr Barbin.

[11] All witnesses attended the hearing and were cross-examined.

[12] During the hearing on 19 March 2026, Counsel for Stowe confirmed that Stowe would not take any steps to make an application to the Commission for approval of the variation until close of business on 23 March 2026.

[13] The matter was listed for hearing from 1:00pm to 5:00pm based upon submissions by the parties' legal representatives that the hearing would conclude in that period. As it became clear during the hearing that the hearing would not conclude by 5:00pm, I indicated I would sit until 5:30pm. Stowe's submissions concluded at 6:00pm. I indicated that I could not sit beyond that time and that if the matter was adjourned part heard, it would not be possible to issue a decision by 23 March 2026. To ensure that a decision could be made by 23 March 2026, CEPU filed short written submissions in reply on 20 March 2026 in accordance with directions made by the Commission at the conclusion of the hearing.

[14] In summary, I am not satisfied that Stowe has not met, or is not meeting, the good faith bargaining requirements. I have dismissed the application.

• [15] The facts of the matter are largely uncontested. Stowe is an industrial electrical and communications contractor and provider, which operates in 12 locations across New South Wales, the Australian Capital Territory, Victoria, Queensland and Western Australia. The Sydney Western Division is one of Stowe's operational divisions that predominantly delivers high voltage and engineering services, as well as maintenance, servicing, and general electrical works. The Division operates mainly on Defence and Sydney Water sites across the County of Cumberland, as well as on local sites in Western Sydney.[2]

• [16] Mr Adam Ingleton is the Branch Manager, Sydney Western Division of Stowe. In this role, Mr Ingleton is responsible for the overall operation of the Division, including day-to-day operations management, financial performance, reporting, and compliance. He also manages workload, pipeline, and staffing to ensure the business operates effectively. Mr Ingleton reports to Mr Scott Gandy, Director and General Manager for New South Wales, Western Australia, and the Australian Capital Territory, who in turn is responsible for the operations of Stowe across these geographical areas.[3]
• [17] Mr Ingleton has been involved in the negotiations regarding various enterprise agreements, including the Agreement, which cover employees in the Sydney Western Division.[4]

• [18] In 2022, Mr Ingleton met and dealt with Mr Christopher Pappas, CEPU Organiser, towards the end of negotiations for the Agreement. From the time that he became involved, Mr Pappas attended every bargaining meeting as the sole representative for the CEPU. Mr Ingleton dealt with Mr Pappas from time to time on matters relating to employees in the Sydney Western Division of Stowe.[5]

• [19] Mr Fred Barbin is the Assistant Secretary of the CEPU, Electrical Trades Union Division, New South Wales Branch. Mr Barbin gave evidence that between around 2021 and July 2025, Mr Pappas reported to him. Mr Barbin said that he currently has approximately eight organisers in the NSW/ACT region and that when organisers are directly negotiating with employers on behalf of the CEPU, they require verbal or written approval by the Secretary or Assistant Secretary to take any steps to act on behalf of the CEPU to bind the CEPU to any agreements.[6]

• [20] In around late March or early April 2025, Mr Ingleton received a phone call from Mr Pappas during which Mr Pappas told him that the CEPU wanted to achieve an increase to employees' hourly rate from the expiry of the Agreement and a 12-month extension of the nominal expiry date of the Agreement.[7] Mr Pappas said to Mr Ingleton words to the following effect:

The Union want this to allow more time for the industry to level and allow broader multi-enterprise negotiations. There's a lot happening in the industry and bargaining happening with a number of companies and things which could lead to a multi-employer enterprise agreement. The Union want to delay bargaining for a new agreement until at least October 2026 when there will be a clearer picture of terms and conditions of employment across the electrical contracting industry.[8]

• [21] Mr Barbin gave evidence that the CEPU had not contemplated the pursuit of a single interest employer agreement (SIEA) in April 2025 because there were various in-term agreements on foot at that time. Mr Barbin said that any discussions regarding the pursuit of a SIEA took place from July 2025 onwards and that any representations made by Mr Pappas in relation to a SIEA are false or did not occur. The CEPU eventually filed an application for a single interest employer authorisation on 16 December 2025, but this does not seek that Stowe be covered by the proposed multi-enterprise agreement.[9]

• [22] Mr Pappas asked Mr Ingleton to arrange a meeting with employees, In response, Mr Ingleton invited Mr Pappas to attend a pre-Easter barbeque event on 17 April 2025 at which most of the employees who were covered by the Agreement would be present.[10]

• [23] Mr Ingleton said that Mr Pappas attended the pre-Easter barbeque event and that he remembers Mr Pappas telling the employees to the effect that Mr Pappas supported seeking a variation of the Agreement and that employees would be in a much better position to negotiate for a new enterprise agreement in late 2026 because the CEPU was attempting to 'level the industry'.[11]

• [24] Mr Pablo Duarte is a CEPU Delegate and Electrician - Leading Hand, at Stowe Western Division. Mr Duarte attended the event on 17 April 2025 and said that Mr Pappas informed him that he was supportive of the variation because it would buy employees time to achieve a more industry-based agreement by way of a multi agreement. Mr Duarte said that Mr Pappas explained that a multi agreement would allow employees to negotiate at the same time as employees in Stowe's Sydney Projects Division as well as employees employed by other electrical contractors in NSW and the ACT. Mr Duarte said that he thought a multi agreement would be good for both sides of the bargaining table. On this basis, he was supportive of the variation.[12]

• [25] After the barbeque, Mr Pappas and Mr Duarte came into Mr Ingleton's office. Mr Pappas explained that the employees had elected Mr Duarte as the Stowe Western Division Union Delegate and that he would be consulting with other employees about matters relating to the Agreement and communicating on their behalf.[13]

[26] Later that day, Mr Pappas sent an email in the following terms to Mr Ingleton which he copied to Mr Duarte:

We would like the company to consider a off EBA increase to the workers covered by the agreement of 5% to allow the Construction EBA negotiation to take its course.

5% would get the members at Stowe Penrith inline with the current rates for other construction. The example given to you in the shed was.

As of 1st May EW5 (Licensed rate for other construction)

We are not seeking any increase in the productivity.

The hope is we can reach agreement on Friday 9th May and be in a better position to level the industry in 2026.

• [27] On 9 May 2025, Mr Ingleton attended a meeting with Mr Pappas and Mr Duarte and told them to the effect that Stowe could not provide a 5% pay increase but was prepared to provide a 4% pay increase as part of the proposed variation of the Agreement. Mr Pappas and Mr Duarte told Mr Ingleton that they would consult with the employees and let him know if there was support for the proposed variation of the Agreement on that basis.[15]

[28] On 9 May 2025, Mr Pappas sent an email in the following terms to Mr Ingleton which he copied to Mr Duarte:

Below is what was communicated to the members after our meeting this morning.

As of yet there has been no feedback, but I will confirm Monday.

Management have offered an increase of 4% on the current agreement in counter of our ask of 5%.

Pablo and I have consulted with as many people as possible in the last week and believe that 4% is acceptable but I'd like to give everybody the opportunity to have their say, so if anyone DOES NOT AGREE with the 4% can you please come back to me by close of business Monday.

If the majority of people do not get in touch with me by COB Monday, then I will take that as the increase has been endorsed and I will notify Stowe management that they can start amending their current agreement.

The pay increase will not come into effect until October in line with your previous 3 increase's. As discussed at the meeting before Easter it's my intent to came back in 12 months and try and achieve a more industry-based agreement with Stowe so as the industry figures out what the next 3 years looks like I'm more than happy to give you guys updates just let me know what you want to know.

Finally, it's not a case of see you guys in 12 months when this is done, if you have issues or you just want an industry update my contact info is on the bottom all you have to do is reach out.

[29] Later that day, Mr Ingleton sent an email in the following terms to Mr Pappas which he copied to Mr Duarte:

Thanks for that. Once you provide confirmation on Monday, we'll set up an online vote like we did at the last EBA with wording we can both agree on because we need to provide the proof with our variation paperwork we'd be submitting to Fair Work.

Have a good weekend and we'll chat early next week.

[30] On 12 May 2025, Mr Pappas sent an email in the following terms to Mr Ingleton which he copied to Mr Duarte:

The membership is happy with the agreed 4% increase.

[31] Mr Ingleton said that he intended to take steps to arrange the vote so that the Agreement could be formally varied however this did not occur for two reasons. Firstly, Mr Gandy had committed to Mr Ingleton that he would organise the vote. In or around August or September 2025, Mr Ingleton contacted Mr Gandy by telephone to ask him what was happening with arranging the vote. Mr Gandy said to Mr Ingleton words to the following effect:

I'm not going to arrange it just yet. There's a multi-enterprise agreement that's on the table and a bigger picture at play. There's other stuff happening so leave it with me.[19]

• [32] Secondly, in or around July 2025, Mr Pappas ceased working as an Organiser for the CEPU and Mr Ingleton was not informed of his replacement. Further, Mr Duarte did not follow up Mr Ingleton to arrange for a vote on the proposed variation of the Agreement. Based on these interactions, Mr Ingleton left the matter to Mr Gandy.[20]

[33] On 11 July 2025, Mr Pappas sent an email to Mr Allen Hicks which was copied to Mr Fred Barbin and other CEPU officials. Mr Hicks is the Secretary of the CEPU, Electrical Trades Union Division, New South Wales Branch. The email had a subject heading 'handover' and relevantly provided:

In an effort to make it as smooth transition as possible I'm just going to highlight some areas that are currently unresolved. Due to the fact I'm not sure what the intention is of replacing me I have cc all current members of the construction team as I understand it, so that the members are caused the least amount of disruption.

• Stowe West Division agreed to a 4% increase and 12-month extension of the current agreement earlier in the year. The increase is due in October I have attached the vote results in case there is an issue in October, but I don't believe there will be.

I hope this summary helps whoever takes on from me and in the case, I don't see the rest of you before I leave, I just want to wish you all the best in the future.

[34] During the hearing, Mr Barbin said that he was on leave when Mr Pappas sent this email and probably did not read it until August 2025.

[35] On 17 December 2025, Ms Emily Strachan, Senior Legal Officer, CEPU, Electrical Trades Union Division, New South Wales Branch sent an email to Mr Gandy which was copied to Mr Hicks and Mr Barbin. The email attached a letter to Mr Gandy from Mr Hicks which provided:

Re: Request to bargain under s 173(2A) of the FW Act

1. I write to you regarding the Stowe Australia Pty Ltd - Sydney Western Division Single Enterprise Agreement 2022 (Agreement).
2. In accordance with s 173(2A) of the Fair Work Act 2009 (Cth) (FW Act), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) hereby formally requests to bargain for a single-enterprise agreement that will replace the Agreement.
3. Under ss 173(2)(aa) and (3) of the FW Act, Stowe Australia Pty Ltd must issue a notice of employee representational rights as soon as practicable, and not later than 14 days from the date of this letter.
4. We request a bargaining meeting in the week commencing 5 January 2025. We will provide you with our log of claims prior to this meeting.

• [36] Mr Ingleton said that after being informed about the letter, he and Mr Gandy agreed that it was appropriate to check that the employees were still committed to seeking a variation of the Agreement. Mr Ingleton arranged a meeting with employees, including Mr Duarte, on 19 December 2025 for this purpose.[23]

• [37] On 19 December 2025, Mr Ingleton met with Mr Duarte before the scheduled meeting with employees. Mr Ingleton said that he explained to Mr Duarte that Stowe wanted to understand if there was still support for a variation of the Agreement. Mr Ingleton said that he told Mr Duarte that he would provide an overview to the employees and then leave Mr Duarte to speak with the employees and for them to decide whether they continued to support the proposed variation of the Agreement. Mr Ingleton said that Mr Duarte agreed with this approach, that Mr Duarte said that he had not been spoken to by anyone from the CEPU since Mr Pappas had left, and that Mr Duarte did not know who he should be dealing with from the CEPU.[24]

[38] Mr Duarte said that during the meeting with employees, Mr Ingleton said words to the effect of:

The ETU require another vote to be done so that you can get your 4% pay rise. Scott Gandy is having discussions with the ETU. We are not happy with the way things are going and the expectations of the union...you have two options. You vote this up now and get the 4% and an extension of the enterprise agreement for another 12 months and you get your money quicker or you can vote it down and then we'll negotiate with the ETU and you can fight for more with no guarantee of when it will get through.[25]

• [39] Mr Ingleton denied that he made these statements during the meeting.[26]

• [40] Mr Ingleton left the meeting so that employees could discuss the proposal and conduct a vote.[27] Mr Duarte then conducted the vote as the elected CEPU delegate. The 32 employees who were present at the meeting voted in favour of varying the Agreement.[28]

• [41] Mr Duarte said he voted in support of the variation because he was annoyed that he and other employees had not yet received the 4% increase.[29] Mr Duarte said that he and other employees were given no prior notice that this vote was occurring. Stowe did not provide employees with any information regarding the variation prior to the vote and it did not hold meetings with employees to explain the variation prior to the vote.[30]

• [42] Mr Duarte said that at the time he voted in support of the variation, it did not cross his mind what impact the variation would have on bargaining for a new enterprise agreement and that he cannot remember this being explained to employees at the time of the vote.[31]

• [43] At the conclusion of the meeting, Mr Duarte called Mr Ingleton and asked him to return to the meeting. Mr Duarte and another employee, Mr Rob Ellison advised Mr Ingleton that the employees at the meeting voted unanimously in favour of seeking the variation to the Agreement. Mr Ingleton then informed Mr Gandy about the outcome of the meeting.[32]

[44] On 23 December 2025, Mr Gandy sent an email to Mr Hicks in the following terms:

At the Union's initiative, the employees covered by the current Stowe Australia Western Division Single Enterprise Agreement 2022 agreed that it would be extended by a further 12 months and that the wage rates in Schedule B will be increased by 4% for that further period. Stowe was advised that this agreement was reached at a meeting between the Union and affected employees held in May 2025.

Stowe is committed to supporting the agreement reached between the Union and the affected Western Division employees and looks to the Union to provide similar support.

If you have any questions don't hesitate to contact me.

• [45] The 4% pay increase was paid to employees from the first full pay period in January 2026, which Mr Ingleton said was consistent with his communication to employees at the meeting on 19 December 2025.[34]

• [46] Mr Ingleton said the formal vote on the proposed variation of the Agreement was not arranged until March 2026 because he was on leave from 22 December 2025 to 27 January 2026 and then there were a number of operational matters he was required to attend to on his return, including attending a management conference for three days in late February 2026.[35]

[47] On 3 March 2026, Mr Ingleton sent an email to employees attaching:

1. a notice of intention to vary the Agreement;
2. a written explanation of the proposed variation of the Agreement; and

• c. correspondence to employees notifying them of an electronic ballot to approve the proposed variation on 11 March 2026.[36]

[48] This explanation of the proposed variation of the Agreement included the following:

At the union's initiative last year, it was suggested that we vary the Current Agreement to extend the term and facilitate the payment of increased wages for the fourth year.

Discussions with employees showed that they would be in support of such a variation.

Accordingly, we are seeking to vary the Current Agreement to extend the term to 4 years instead of 3 and include increased wages for the fourth year.

The proposed variation will enable the Division to adapt to changing market conditions, improve employee conditions and benefits to remain competitive, and increase employee wage rates. The variation will also enhance the Division's ability to tender for and secure work, thereby providing greater job security for employees and certainty for the Division.

As a result, we will be holding meetings with employees covered under the Current Agreement to explain the variations and seek your support and agreement in accordance with section 208(1) of the Fair Work Act 2009 (Cth) to vary the Current Agreement.[37]

• [49] Mr Ingleton then sent an email to Mr Barbin providing the same documents[38] and they subsequently had a brief telephone call. During this phone call, Mr Barbin, said that the CEPU knew nothing about the proposed agreement by Mr Pappas.[39]

[50] Mr Ingleton then received correspondence from Maurice Blackburn Lawyers (MBL), acting on behalf of the CEPU on 4 March 2026 which asserted that:

• By proposing to vary the Agreement by simply extending the nominal expiry date, it is evident Stowe is engaging in capricious and unfair conduct which is intended to undermine and circumvent bargaining.
• The effect (and plain motivation) of the proposed variation is to prevent the CEPU from initiating bargaining until October 2026 noting the proposed variation does not provide for wage increases.

• • Stowe has failed to recognise the CEPU as a bargaining representative in contravention of s.228(1)(f) of the FW Act.[40]

[51] The letter then requested that by 5pm on 5 March 2026, Stowe:

• do the following to address its alleged failure to comply with s.228 of the FW Act:

(a) Recognise the CEPU as a bargaining representative for a new agreement;

(c) Hold a bargaining meeting in the week commencing 9 March 2026 and participate in bargaining meetings with the CEPU that week;

(d) Agree to hold further bargaining meetings with the CEPU once per fortnight from then on or unless otherwise agreed; and

(e) Agree to not proceed to bargain with its employees without the CEPU present.; and

(f) Agree to not take any further steps in relation to the proposed variation to extend the nominal expiry date of the Agreement.

• • provide a signed written undertaking from Stowe that it will refrain from requesting that the employees to whom the Agreement applies, approve a variation to extend the nominal expiry date of the Agreement by voting for such variation.[41]

• [52] The letter concluded by stating that if Stowe did not undertake the above actions in the required timeframe, the CEPU reserves the right to make an application for a bargaining order under s.229 of the FW Act without further notice to Stowe and to seek urgent orders from the Commission to prevent Stowe from taking further steps in relation to any proposed variation to the Agreement.[42]

[53] On 5 March 2026, Sparke Helmore Lawyers (SHL), acting on behalf of Stowe, responded to the letter from Maurice Blackburn Lawyers. This response included the following assertions:

• Until Stowe received the letter from MBL, Stowe had not received any response from the CEPU to the emails of 23 December 2025 and 3 March 2026, or any other communication from the CEPU about the Agreement. As such, Stowe is extremely surprised that the CEPU is now raising an urgent issue against the proposed variation of the Agreement which it had previously advised it supported.

• it is wholly unreasonable that the CEPU, having been aware since at least 23 December 2025 that Stowe intended to seek a variation of the Agreement and having had this confirmed to its Assistant Secretary on 3 March 2026, now seeks an urgent undertaking from Stowe, in one business day, that Stowe will not proceed with the scheduled ballot on 11 March 2026 to confirm that employees wish to seek the variation of the Agreement.

• • The CEPU has been on notice for more than two months that Stowe intended to seek the variation of the Agreement, and the CEPU cannot have been surprised about Stowe's intention given that the CEPU had told Stowe that it and the relevant employees supported the variation.[43]

• [54] The response from SHL asked MBL to confirm whether the CEPU's position is that, as an alternative to seeking the proposed variation of the Agreement, Stowe should revert to paying the relevant employees at the lower rates they are entitled to receive under the Agreement and to commence bargaining for a replacement enterprise agreement. This was for the purpose of SHL obtaining instructions about the actions that Stowe was requested to take by the MBL letter.[44]

[55] MBL did not respond to the letter from SHL.

[56] On 7 March 2026, the CEPU made an application under s.229 of the FW Act.

• [57] On 11 and 12 March 2026, the vote in relation to the proposed variation of the Agreement was held by an external voting company, CiVS. Stowe received the results on 12 March 2026 which indicated that 59 out of 60 eligible employees voted, and of these, 47 employees supported the proposed variation of the Agreement.[45]

[58] The good faith bargaining requirements are set out in s.228 of the FW Act which provides:

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

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

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

[59] If a bargaining representative has concerns that one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements, they may apply to the Commission for a bargaining order in relation to the agreement under s.229 of the FW Act which provides:

(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.

[60] Section 230 sets out the requirements that the Commission must be satisfied of before making a bargaining order and provides:

230 When the FWC may make a bargaining order

(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

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

(b) the requirements of this section are met in relation to the agreement; and

(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

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

Agreement to bargain or certain instruments in operation

(2) The FWC must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(aa) the employer or employers have received a request to bargain under subsection 173(2A) in relation to the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(c) a scope order in relation to the agreement is in operation;

(d) all of the employers are specified in a supported bargaining authorisation that is in operation in relation to the agreement;

(e) all of the employers are specified in a single interest employer authorisation that is in operation in relation to the agreement.

(i) one or more of the relevant 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) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

[61] There is no dispute, and I am satisfied that Stowe has received a request to bargain under subsection 173(2A) in relation to the agreement, that the CEPU is a bargaining representative for bargaining for an enterprise agreement to replace the Agreement and is eligible to make the application, and that the application has been made during the period prescribed by s.229(3)(a).

• the CEPU has complied with s.229(4), and if not, whether I am satisfied that it is appropriate in all the circumstances to consider the application under s.229(5); and
• whether Stowe has not met, or is not meeting, the good faith bargaining requirements, and if so, whether it is reasonable in all of the circumstances to make the orders sought by CEPU.

[63] The CEPU submitted that it has complied with s.229(4) because it:

(a) has given Stowe a written notice setting out their concerns that Stowe is not complying with its good faith bargaining obligations;

(b) has given Stowe a reasonable time to respond to those concerns; and

(c) considers that Stowe has not responded appropriately to those concerns.

[64] Stowe submitted that on 5 March 2026, Stowe (by its lawyers) substantively engaged with the CEPU's concerns by:

(a) identifying the relevant history of interactions between the CEPU and Stowe concerning a proposal to vary the Agreement.

(b) identifying that Stowe had not received a substantive response to Stowe's 23 December 2025 and 3 March 2026 correspondences to the CEPU; and

(c) identifying that the CEPU's position was contrary to the good faith pay increases granted to relevant employees in January 2026, consistent with the proposed variation of the Agreement.

[65] Stowe submitted that prior to filing its original application dated 7 March 2026, the CEPU did not engage with the issues raised by Stowe in its 23 December 2025, 3 March 2026 and 5 March 2026 correspondence or identify the basis on which the CEPU maintains that Stowe has 'not responded appropriately to those concerns' for the purposes of s.229(4)(d) of the FW Act.

[66] There does not appear to be any dispute between the parties that the CEPU complied with s.229(4)(b) by giving Stowe a written notice through the MBL letter which set out its concerns in s.229(4)(a) that Stowe has not met or is not meeting the good faith bargaining requirements. In relation to s.229(4)(c), I find that the CEPU gave Stowe a reasonable time to respond to those concerns, given that the vote for the variation was due to commence on 11 March 2026 and that in any event SHL responded to the MBL letter in the timeframe requested in the MBL letter.

[67] In relation to s.229(4)(d), it is clear from the MBL letter that the CEPU was concerned that in proposing to vary the Agreement by extending the nominal expiry date, Stowe was preventing the CEPU and its members from engaging in bargaining until October 2026. The CEPU alleged that such conduct contravened s.228(1) of the FW Act. The CEPU requested that Stowe engage in bargaining for a new agreement and undertake that it will refrain from requesting that the employees approve the proposed variation. Having regard to the terms of the MBL letter, I find that these requests constituted the action that the CEPU believed was necessary to respond appropriately to its concerns.

[68] SHL responded to the MBL letter on behalf of Stowe. The SHL letter did not agree to the requests in the MBL letter but sought advice as to whether the CEPU's position is that, as an alternative to seeking the proposed variation of the Agreement, Stowe should revert to paying the relevant employees at the lower rates they are entitled to receive under the Agreement and to commence bargaining for a replacement enterprise agreement.

[69] The CEPU did not respond to the SHL letter but made the application to the Commission two days later. It is reasonable to infer, based on the CEPU not responding to the SHL letter, that the CEPU's position was not that, as an alternative to seeking the proposed variation of the Agreement, Stowe should revert to paying the relevant employees at the lower rates.

[70] In the application, the CEPU asserted that Stowe had refused to provide the undertaking sought in the MBL letter.

[71] I find that as Stowe did not agree to the requests in the MBL letter including the provision of an undertaking, the CEPU considered that Stowe has not responded appropriately to its concerns that Stowe has not met or is not meeting the good faith bargaining requirements in accordance with s.229(4)(d).

[72] Taking all of these matters into account, I am satisfied that the CEPU has complied with each of the requirements in s.229(4). I therefore do not need to consider s.229(5).

Whether Stowe has not met, or is not meeting, the good faith bargaining requirements

[73] The CEPU submitted that Stowe has failed to meet, and is continuing to fail to meet, the requirement in s.228(1)(f) to recognise and bargain with the CEPU. The CEPU submitted that Stowe has:

(a) ignored the CEPU's request to bargain served on 17 December 2025 and has refused to engage in bargaining in the three months that have since passed;

(b) failed to recognise the CEPU as a bargaining representative;

(d) ignored the CEPU's requests for a bargaining meeting and sought to circumvent bargaining altogether by embarking upon a variation to the Agreement which contravenes s.228(1)(a) of the FW Act.

[74] In relation to Stowe's reliance on the agreement in May 2025 for its failure to bargain, the CEPU submitted that Stowe did nothing until 19 December 2025, two days after the CEPU served its request to bargain, to take steps to advance the agreement allegedly made in May 2025. The CEPU also pointed to Stowe not giving its employees the 4% pay increase said to have been payable from October 2025 and submitted that it is obvious that the CEPU does not accept that there was such an agreement in May 2025 and, in any event, now wishes to bargain.

[75] The CEPU submitted that Stowe has steadfastly refused to bargain with it, as the statutory representatives of its members. Further, it has actively attempted to undermine the CEPU's statutory role by varying the Agreement without engaging with the CEPU about the variation.

[76] The CEPU submitted it has requested that Stowe engage in bargaining meetings with it but Stowe has refused to do so.

[77] The CEPU submitted that Stowe has engaged in unfair and/or capricious conduct that has undermined collective bargaining. The CEPU submitted that Stowe's initial refusal to bargain was premised on an alleged agreement reached in May 2025 that it made no effort to implement. It was not until the CEPU asked to bargain that Stowe suddenly took (legally ineffective) steps to give effect to the alleged agreement.

[78] The CEPU submitted that those (legally ineffective) steps involved Stowe asking employees to vote on a proposed variation at a Christmas Party, prior to which no notice had been given to employees that they would be called on to vote. The CEPU submitted that in doing so, Stowe:

(a) did not give the CEPU or the employees notice that it intended to conduct such a vote;

(b) did not give the CEPU or the employees anything in writing that explained the proposed variation;

(c) gave employees false and misleading information about the choice they were required to make (namely, that they had two options - to vote up a 4% increase and an extension of the enterprise agreement for another 12 months and they would get their money quicker or to vote it down with Stowe then negotiating with the CEPU, leaving the employees without any guarantee of a wage increase);

(d) falsely suggested that the CEPU supported the proposal when its initiation of bargaining and the MBL Letter were clear indicators that the CEPU did not support the proposal;

(e) gave the employees no opportunity to seek advice about the proposal (which opportunity may well have resulted in the employees becoming aware that the CEPU did not support the proposal); and

(f) used a 'show of hands method' to conduct the vote.

[79] The CEPU submitted that no sensible basis has been articulated by Stowe as to why it is seeking to vary the Agreement rather than engage in bargaining for a new agreement.

[80] The CEPU submitted that despite Stowe's suggestion in the information provided to employees that the variation would 'improve employee conditions and benefits' and increase wages rates, the only improvement to those conditions was the increased wage rate. The CEPU submitted that a wage increase coupled with an extended operating date does nothing to allow the Division to 'adapt to changing market conditions' or to 'enhance' its ability to tender for and secure work. The CEPU submitted that it is apparent that the real reason for the proposed variation was to prevent employees from engaging in enterprise bargaining and the commensurate risk that employees would, in fact, secure the improved 'employee conditions and benefits' to which Stowe falsely asserted they would obtain under the variation.

[81] The CEPU submitted that Stowe asked the employees to approve the variation without affording them any opportunity to bargain. This is highly anomalous and is the first occasion Stowe has not given employees an opportunity to be represented and bargain for a new agreement.

[82] Stowe submitted that given the context and circumstances of the interactions on behalf of the CEPU, Stowe and its employees during April and May 2025, it is clear that an understanding was arrived at between the parties involved. The initiative was pursued at the request of the CEPU and Stowe organised for the CEPU to meet with employees to explain its proposal. There then followed a period during which the parties discussed the percentage of any pay increase. The very reasons for the proposal, as communicated by the CEPU (and then Stowe), was to allow employees to receive pay increases and then any bargaining to occur at a later point when more was known about other bargaining developments in the industry, including in respect of a multi-employer enterprise agreement which was being raised by the CEPU.

[83] Stowe submitted that the fact that Stowe did not pursue a formal process of varying the Agreement to reflect the agreed position does not indicate that Stowe was 'undermin[ing] freedom of association or collective bargaining'.

[84] In relation to the CEPU's submission that Stowe ignored the CEPU's request to bargain and for a bargaining meeting, Stowe submitted that it did not ignore the CEPU's requests but that it responded to the CEPU's request to bargain by way of written correspondence on 23 December 2025 and that it further responded in detail to the CEPU's concerns by way of its 5 March 2026 letter.

[85] In relation to the CEPU's submission that Stowe failed to recognise the CEPU as a bargaining representative, Stowe disputed this and submitted that from March 2025 and 19 December 2025, Stowe dealt directly with the CEPU's Organiser (Mr Pappas) and Delegate (Mr Duarte).

[86] In relation to the CEPU's submission that Stowe failed to issue a NERR, Stowe submitted that this is not indicative of any 'capricious or unfair conduct that undermines freedom of association or collective bargaining' and that having regard to the circumstances, including the events which transpired between March 2025 and 12 May 2025, issuing a NERR would be tantamount to disregarding all that had occurred with the involvement of the CEPU during this period.

[87] In relation to the CEPU's submission that Stowe 'took no steps to vary the Agreement and did not give the workers the pay rise that was said to form part of the bargain', Stowe submitted that in the first pay period in January 2026, Stowe implemented, in good faith and following a further meeting with employees to confirm the level of support for the variation, the increase to employees' salaries by 4%. This followed on from and reflected the rate of increase that was agreed on 12 May 2025.

[88] I find, based on the evidence of Mr Duarte, Mr Ingleton, and Mr Ellison, that:

• The proposal to extend the nominal expiry date of the Agreement and for employees to receive a pay rise in October 2025 was initiated by Mr Pappas;
• Mr Pappas explained that the reason for the proposal was to ascertain what was happening in the industry more broadly;
• A majority of employees who attended the pre-Easter barbeque event on 17 April 2025 voted in favour of the CEPU's initial proposal of a 5% pay rise;
• Stowe did not accept the CEPU's proposal of a 5% pay rise and made a counter proposal of 4% which a majority of employees accepted in May 2025;
• It was reasonable for Mr Ingleton to believe that Mr Pappas was authorised by the CEPU to propose extending the nominal expiry date of the Agreement and for employees to receive a pay rise in October 2025;
• Mr Ingleton was not aware until he received the letter from MBL that the CEPU was claiming that Mr Pappas was not acting with the CEPU's authority.

[89] I find, based on the evidence of Mr Ingleton, that Stowe, through the conduct of Mr Gandy, did not regard itself as bound by the agreement reached with employees in May 2025 as it took no steps to formalise that agreement or to ensure that employees received the 4% pay rise in October 2025. According to Mr Ingleton, Mr Gandy said to him in August or September 2025 that he would not yet arrange the variation of the Agreement because 'there's a multi-enterprise agreement that's on the table and a bigger picture at play'. In my view, this was poor conduct on the part of Mr Gandy towards employees who were expecting to receive a 4% pay rise in October 2025 and may well have been planning their lives and expenses around this expectation. Mr Gandy should have told employees that Stowe would not be providing them with a pay rise in October 2025 and the reasons for this so that employees could have adjusted their plans and/or considered their next steps in relation to the Agreement. Mr Gandy did not do so which does not reflect well on him or Stowe.

[90] I also believe that employees at Stowe were let down by their union and that the events which led to the application for variation to the Agreement need to be viewed in this context. Regardless of whether Mr Pappas had authority to initiate a variation to the Agreement, he cannot be criticised for taking steps to ensure that employees received a pay rise when it was due in October 2025. The same cannot be said for the leadership of the CEPU who took no such steps and did not even initiate bargaining until two months after Stowe employees would have expected to receive a pay rise.

[91] There appears to have been no Organiser appointed to replace Mr Pappas and Mr Duarte did not have a CEPU official who he could contact about workplace issues after Mr Pappas' resignation. Mr Pappas provided handover notes on 11 July 2025 to both Mr Hicks and Mr Barbin just prior to his resignation taking effect which advised of the 4% increase due in October 2025 and the 12 month extension of the Agreement. The email referred to a meeting which was to take place between Mr Pappas and Mr Hicks the following Monday where this matter could have been discussed. Mr Barbin gave evidence that he probably read the handover notes in about August 2025, however he claimed when he spoke to Mr Ingleton on 3 March 2026 that the CEPU knew nothing about the proposed agreement by Mr Pappas. This indicates that neither Mr Hicks or Mr Barbin read the information about members at Stowe, or alternatively, they read the information and promptly forgot it.

[92] Having not paid any attention to members at Stowe Sydney Western Division for five months, the CEPU suddenly initiated bargaining on 17 December 2025, but without, it appears, obtaining the consent of Mr Duarte or other CEPU members or engaging in any communication or consultation with them. So much is clear from Mr Duarte's evidence to the Commission that at the time of the meeting on 19 December 2025, he had not heard from the CEPU following Mr Pappas' departure.

[93] If the CEPU had communicated with Mr Duarte and other members prior to initiating bargaining on their behalf, it is likely that it would have been informed of the agreement which Mr Pappas referred to in his handover notes and that members were expecting to receive a pay rise. Although the expected timeframe for receiving the pay rise had come and gone, Mr Duarte clearly expected Stowe to implement the agreement reached in May 2025 as he gave evidence that he voted in support of the variation on 19 December because he was annoyed that he and his colleagues had not yet received the 4% increase. Having regard to Mr Duarte's evidence, I believe that members may well have instructed the CEPU if the CEPU had been in touch with them prior to 17 December 2025 that they did not want to bargain and that they wanted the agreement reached in May 2025 formalised so that they could receive a pay rise.

[94] Further, if Mr Duarte was aware that the CEPU had initiated bargaining, this may have led him to involve a CEPU official in the meeting on 19 December 2025 given that Mr Duarte was given advance notice of the meeting by Mr Ingleton.

[95] Notwithstanding my concerns about the circumstances surrounding the CEPU's request to bargain on 17 December 2025, I accept that this triggered compliance with the good faith bargaining requirements by both the CEPU and Stowe from 17 December 2025. However, for reasons which I explain later in this decision, I believe that it was reasonable for Stowe to assume that the CEPU no longer wished to bargain for a new agreement shortly after Stowe sent email correspondence to the CEPU on 23 December 2025. From this time, it could not be reasonably expected that Stowe, would, for example, attend, and participate in, meetings at reasonable times, as required by s.228(1)(a).

[96] The CEPU submitted that Stowe's actions on 19 December 2025 were in response to the CEPU's request to bargain on 17 December 2025 and designed to prevent bargaining from occurring. It submitted that the proposal that employees were asked to consider was different to the proposal agreed to in May because the 4% pay rise would take effect in January 2026 rather than October 2025. The CEPU was critical of Stowe moving quickly to meet with employees and not permitting employees to discuss the proposal with their union, families and colleagues. The CEPU relied on the following concession by Mr Ingleton during cross-examination:

Counsel for the CEPU: If employees agree with the variation, Stowe Penrith will not have to bargain with ETU?

[97] The CEPU was also critical of Stowe for not disclosing to employees at the meeting on 19 December 2025 that the CEPU had initiated bargaining and not involving the 'CEPU office' in the meeting on 19 December 2025. In my view, Stowe had no such obligation. Ultimately, it was the CEPU's responsibility to advise employees that it had initiated bargaining on their behalf, not Stowe's. The CEPU leadership was unaware of the meeting on 19 December 2025 because it had made no attempt to engage with its workplace delegate and members for a period of five months, not because of any conduct on the part of Stowe.

[98] In my view, the key issue for consideration is whether Stowe, having decided not to proceed with the Agreement variation agreed in May 2025, engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining by asking employees for their views in relation to a different proposal on 19 December 2025 in response to the CEPU's request to bargain received two days earlier. This is not a situation where having received Mr Hicks' letter, Stowe rushed to conduct a formal vote to vary the Agreement. Rather, I believe that Stowe acted to verify its own understanding about whether employees still supported Mr Pappas' proposal to vary the Agreement, before determining what action it would take in response to the CEPU's request.

[99] Employees had already made a decision in May 2025 that they would defer bargaining until October 2026 in return for a pay rise. While it is likely that Stowe had a preference to extend the nominal expiry date of the Agreement rather than bargain for a new agreement, it seems to me that there is nothing objectionable in Stowe ascertaining whether employees continued to share that view, after consulting Mr Duarte, given that the original idea for the extension came from the employees' representative, Mr Pappas and that the employees had agreed with the extension seven months earlier. The situation may have been different if employees had never previously expressed a preference for extending the Agreement and/or the variation was originally initiated by Stowe, but that is not the case here.

[100] Mr Gandy's and Mr Ingleton's decision to proceed with the meeting on 19 December 2025 before responding to the CEPU's letter may well have been designed to ascertain the views of employees without involvement of the CEPU leadership. Such actions by Stowe may be unacceptable to the CEPU however I do not regard the involvement of union leadership in the meeting on 19 December 2025 as a necessary requirement given that a formal vote was not taking place, and that Stowe involved the CEPU in an informal voting process by requesting Mr Duarte to run the meeting, conduct the vote and advise the outcome of the vote. In circumstances where there was no Organiser assigned to the workplace for many months, and there is no evidence that the CEPU leadership was regularly engaging with Stowe, it was reasonable for Stowe to recognise the CEPU in this way.

[101] Once Stowe had established that its employees were supportive of extending the Agreement in exchange for a pay rise in January 2026, it communicated to Mr Hicks two working days after the meeting on 19 December 2025, that Stowe was committed to supporting the agreement reached between the CEPU and the affected Sydney Western Division employees and looked to the CEPU to provide similar support. Mr Hicks forwarded this email to Ms Strachan and Mr Barbin on the day he received it.

[102] The email was not accurate in referring to the May 2025 agreement because in fact Stowe wanted to implement the agreement reached on 19 December 2025 (which involved the 4% pay rise taking effect in January 2026 rather than October 2025). However, it was a feature of both the May and the December agreements that the Agreement would be extended by a further 12 months and it was clear on the face of the email that this is what Stowe was intending to do. The email concluded by saying that it looked to the CEPU to provide support to the agreement reached between the CEPU and the affected Sydney Western Division employees and invited Mr Hicks to contact Mr Gandy if he had any questions.

[103] In my view, the email from Mr Gandy to Mr Hicks was in effect, an invitation to revisit the agreement to extend the Agreement as an alternative to participating in bargaining for a new enterprise agreement. The CEPU did not respond to the email.

[104] There is no evidence that the CEPU, having received Mr Gandy's email, contacted Mr Duarte or any members at Stowe Sydney Western Division to discuss the proposal to vary the Agreement or to advise them against proceeding with it. There is also no evidence that Mr Duarte or any members at Stowe Sydney Western Division contacted the CEPU to advise that they were concerned about what transpired at the meeting on 19 December 2025 and that they did not want to proceed with the variation.

[105] As there was no response to Mr Gandy's email of 23 December 2025 and there is no evidence of the CEPU or employees raising concerns with Stowe about the meeting on 19 December 2025 or the proposed variation, I find that it is likely that Mr Ingleton and Mr Gandy assumed that the CEPU was supporting the variation of the Agreement and that it was no longer pursuing bargaining for a new agreement. I also find that it was reasonable for Mr Ingleton and Mr Gandy to make this assumption, particularly as the CEPU took no steps to follow up its request for bargaining meetings until it received information about the vote from Stowe on 3 March 2026. I also observe that in its request to bargain, the CEPU requested a bargaining meeting in the week commencing 5 January 2026 and advised Mr Gandy that it would provide Stowe with the CEPU's with its log of claims prior to this meeting. There is no evidence of the CEPU ever consulting with members about the log of claims or providing Stowe with the log of claims, despite committing to do so.

[106] It is important to observe that at the time that Mr Gandy sent the email to Mr Hicks, employees had expressed a preference for extending the Agreement and receiving a pay rise in January 2026 but that they had not yet received the pay rise and a formal vote to vary the Agreement had not taken place. As such, the CEPU had the opportunity to intervene before any aspect of the informal vote on 19 December 2025 had been implemented. The CEPU could have ascertained whether its members genuinely wanted to extend the Agreement or if they wanted to bargain for an agreement and then conveyed these views to Stowe, but it took none of these actions.

[107] If bargaining for a new agreement was proceeding, the CEPU would have expected the notice of representational rights (NERR) to be issued on 31 December 2025 and for Stowe to nominate meeting times during the week commencing 5 January 2026. Neither of these occurred and the CEPU did not raise any issues with Stowe. If the CEPU was opposed to a variation of the Agreement and believed that bargaining should proceed, I would have expected it to inform Stowe of these matters but it did not do so.

[108] Taking all of these matters into account, I do not accept that Stowe engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining by asking employees to vote on a different proposal on 19 December 2025 in response to the CEPU's request to bargain received two days earlier. Stowe's apparent preference for extending the Agreement had been shared by the employees just seven months earlier and was suggested by their representative. Stowe recognised the role of the CEPU delegate when ascertaining the views of its employees. The vote was informal and did not result in the Agreement being varied. Stowe communicated its intentions with respect to the pay rise and the extension of the Agreement to the CEPU and did not receive any objection. Stowe did not act to implement the variation for over two months. The CEPU could have raised its objections at any time during this period but did not do so until Stowe announced it would commence a formal vote for the variation.

[109] The CEPU submitted that regardless of whether employees voted to agree to the proposed variation on 19 December 2025, its letter of 17 December 2025 required Stowe to take certain steps under the FW Act including issuing a NERR and organising bargaining meetings. I accept that s.173(3) requires an employer to issue a NERR within 14 days of receiving a request to bargain under s.173(2A) of the FW Act and that s.229(a) requires bargaining representatives to attend and participate in meetings. However as stated above I find that it was reasonable for Mr Ingleton and Mr Gandy to assume that the CEPU was supporting the variation of the Agreement and that was no longer pursuing bargaining for a new agreement. In this context, I do not accept that there has been any breach of the good faith bargaining obligations with respect to Stowe's conduct in not issuing the NERR and not organising bargaining meetings.

[110] In relation to the CEPU's submissions that Stowe's request that employees approve the variation without affording them any opportunity to bargain is highly anomalous, I do not accept this. Enterprise agreements may be varied under the FW Act including by extending the nominal expiry date. Mr Pappas initiated the variation proposal and employees overwhelmingly endorsed this in May 2025. As stated above it was reasonable for Mr Ingleton to believe that Mr Pappas was authorised by the CEPU to initiate the variation proposal. It is in this context that Stowe's request that employees approve the variation must be considered.

[111] The CEPU took issue with Stowe's communication about the variation to employees. In particular, the CEPU was concerned that the communication suggested that the CEPU was supportive of the variation and that the variation would lead to improved conditions.

[112] In relation to the first issue, the communication stated:

At the union's initiative last year, it was suggested that we vary the Current Agreement to extend the term and facilitate the payment of increased wages for the fourth year.

Discussions with employees showed that they would be in support of such a variation.

Accordingly, we are seeking to vary the Current Agreement to extend the term to 4 years instead of 3 and include increased wages for the fourth year.

[113] In my view it is accurate to state that the CEPU initiated the variation. At the time that the variation notification was issued, the CEPU had not informed Stowe that Mr Pappas was not authorised to agree to the variation and that the CEPU did not support it. Although the variation that was discussed on 19 December 2025 was different to the variation agreed in May 2025, the variation that employees were asked to vote on in March 2026 was identical to the variation agreed in May 2025 in that it provided for a 4% pay rise in October 2025.

[114] In relation to the reference to conditions, the communication stated:

The proposed variation will enable the Division to adapt to changing market conditions, improve employee conditions and benefits to remain competitive, and increase employee wage rates.

[115] I agree with the CEPU's submission that the variation does not improve conditions other than provide a pay increase. This statement is therefore inaccurate. I do not believe that this statement would have influenced employees to vote in favour of the variation as the variation attached to the communication makes it clear that the variation is limited to extending the Agreement and providing a 4% pay rise. While this matter may be relevant to the Commission's consideration of whether to approve the Agreement, I do not believe that it forms the basis of a finding that Stowe is not meeting the good faith bargaining requirements. If I am wrong about this, I would not be satisfied that it is reasonable in all the circumstances to make the order sought by the CEPU as I do not think that this matter would have affected the outcome of the vote for the variation.

[116] The CEPU's final criticism was in relation to Stowe's statement that:

The variation will also enhance the Division's ability to tender for and secure work, thereby providing greater job security for employees and certainty for the Division.

[117] The CEPU submitted that a wage increase coupled with an extended operating date does nothing to allow the Division to 'adapt to changing market conditions' or to 'enhance' its ability to tender for and secure work. However, this submission disregards evidence provided by Mr Ingleton during cross-examination that having an enterprise agreement that is still within its nominal term assists Stowe to secure and maintain work and to provide job security to its employees by allowing Stowe to forecast and understand what its costs will be.

[118] I am satisfied that Stowe has received a request to bargain under s.173(2A) in relation to the proposed agreement, that the CEPU is a bargaining representative for the proposed agreement, that the application has been made during the period prescribed by s.229(3)(a) and that the CEPU has complied with s.229(4).

[119] I have considered the CEPU's submissions that Stowe is not meeting the good faith bargaining requirements and the evidence it relies upon to support these submissions.

[120] I accept that the good faith bargaining requirements applied to the CEPU and Stowe when the Stowe received a request to bargain from CEPU on 17 December 2025.

[121] I find that Stowe complied with s.228(1)(f) by recognising Mr Duarte's role as the CEPU delegate at the meeting on 19 December 2025 and at all other relevant times.

[122] I do not accept that Stowe engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining by asking employees for their views in relation to a different proposal on 19 December 2025 in response to the CEPU's request to bargain received two days earlier, having decided to not to proceed with the Agreement variation agreed in May 2025. I also do not find that Stowe engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining at any other relevant time. If Stowe had treated the vote in December as a formal variation of the Agreement, and then lodged an approval application in the Commission, I accept that this would have contravened the good faith bargaining principles, but this is not what occurred. Stowe's actions in ascertaining its employees' views must be considered in the context of the original idea for the extension coming from the employees' CEPU representative, and that the employees had agreed with the extension seven months earlier. Having ascertained its employees' views on 19 December 2025, Stowe communicated to the CEPU its intention to apply for a formal variation of the Agreement. As such I find that the CEPU had the opportunity consult with its members and object to the proposal prior to it being implemented. Stowe did not seek to formalise the variation until more than two months after communicating with the CEPU about its intentions however the CEPU did not raise any objections or concerns or do anything to progress its request to bargain.

[123] In its request to bargain, the CEPU requested a bargaining meeting in the week commencing 5 January 2026. In these circumstances, there was no requirement for Stowe to participate in bargaining meetings before this time. As there was no response to Mr Gandy's email of 23 December 2025 and there is no evidence of the CEPU or employees raising concerns with Stowe about the meeting on 19 December 2025 or the proposed variation, I find that it was reasonable for Mr Ingleton and Mr Gandy to have formed the view by 5 January 2026 that the CEPU was supporting the variation of the Agreement and that it was no longer pursuing bargaining for a new agreement. This view would have been reinforced by there being no request by the CEPU for a NERR on 31 December 2025, no attempt by the CEPU to follow up its request for bargaining meetings during the week commencing 5 January 2026 or for the following two months, no provision of a log of claims by the CEPU and no objection to the variation proposal until 3 March 2026.

[124] In this context, I do not accept that there has been any breach of the good faith bargaining obligations with respect to Stowe's conduct in not issuing the NERR and not organising bargaining meetings.

[125] Based upon these findings, it follows that I am not satisfied that Stowe has not met, or is not meeting, the good faith bargaining requirements in s.228(1). The requirements of s.230 are therefore not met. I decline to make the bargaining order sought by the CEPU. The application is dismissed.

[1] Witness Statement of Adam Ingleton dated 17 March 2026 (Ingleton Statement), [10]-[11]

[6] Further witness statement of Fred Barbin dated 18 March 2026 (Further Barbin Statement), [5]-[6]

[9] Further Barbin Statement, [9]-[10]

[12] Statement of Pablo Duarte dated 13 March 2026 (Duarte Statement), [6]

[28] Witness Statement of Robert Ellison dated 17 March 2026, [21]

[39] Witness Statement of Fred Barbin dated 13 March 2026, [5]

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