Fair Work Act 2009

s.248 - Single interest employer authorisation

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

ARA Electrical Major Projects Division Pty Ltd & Carrington Electrical Services Pty Ltd and Others

Applications for single interest employer authorisations - first application by a bargaining representative - second application by employers - stay application - section 249(1B)(b) - whether the Commission is required to stay the first application pending the determination of the second application - s.589 discretion to stay the first application - prejudice - overlap of issues - practical utility of separate hearings - stay refused

[1] On 16 December 2025, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application under s.248 of the Fair Work Act 2009 (Cth) (FW Act) for a single interest employer authorisation, referred to in this Decision as the Union's Application. Eleven (11) employers are respondent to the Union's Application.

[2] On 19 December 2025, a group of 11 employers (including some covered by the Union's Application) made a separate application under s.248 for a single interest employer authorisation, referred to in this decision as the Employers' Application. One employer has since withdrawn from the Employers' Application.

[3] Between the two applications there are 15 different employers. For convenience the employers have been divided into three categories:

(a) Category A Employers: six employers that are respondents to the Union's Application and are also applicants in the Employers' Application;

(b) Category B Employers: five employers that are respondents to the Union's Application only; and

(c) Category C Employers: four employers that are applicants in the Employers' Application only.

[4] Apart from the groupings of employers in each application, the material difference between the applications is the scope of employees to be covered by each proposed authorisation:

(a) the Union's Application seeks to cover employees in relation to any performance of work in New South Wales and the Australian Capital Territory in certain electrical worker classifications; whereas

(b) the Employers' Application seeks to cover employees who perform electrical and communication work for certain types of construction projects in the County of Cumberland with an initial construction contract value of at least $125M.

[5] The legislative provisions that require the Commission to make Single Interest Employer Authorisations are quite complex. For present purposes it is important to note that sub-sections 248(1)(b)(iv) and 249(1B)(b) appear to limit the scope of any authorisation made in response to the Union's Application to employers who have not:

"... made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement."

[6] It is not in dispute that the Category A Employers have made an application for a single interest employer authorisation that has not yet been decided. On 27 January 2026, four of the six Category A employers applied for an order to stay the Union's Application pending determination of the Employers' Application. The four employers (Fredon Industries Pty Ltd, F.J.P. Electrical (NSW) Pty Ltd, Heyday5 Pty Ltd and ARA Electrical Major Projects Division Pty Ltd) will be collectively referred to in this decision as the Stay Applicants.

[7] The Stay Applicants contend that the Full Bench is required to stay the Union's Application because the effect of s.249(1B)(b) is that the employer-initiated application must be heard and/or determined prior to an application initiated by a bargaining representative that overlaps in relation to the group of employees.

[8] The Stay Applicants submit that s.249(1B)(b) directs attention to the time at which the Commission is asked to make the authorisation, and prioritises an employer-initiated application over any competing application made by a bargaining representative.

[9] The submission is that section 249(1) requires that the Commission make an authorisation if the relevant criteria is met. The absence of discretion to refuse an employer-initiated application if it meets the requisite criteria, together with the omission of any equivalent to s.249(1B)(b) in relation to an employer application, shows that Parliament provided a sequencing mechanism that gives precedence to the bargaining intentions of consenting employers over the intentions of bargaining representatives seeking an authorisation that will bind employers who do not consent.

[10] The Stay Application is supported by three of the four Category C employers (Star Electrical Co Pty Ltd, Kerfoot Major Projects Pty Ltd and Stowe Australia Pty Ltd) along with the National Electrical and Communications Association as intervenor.

[11] The CEPU argue that s.249(1B)(b) is only engaged if the scope of "the employees" of a particular employer to be covered by the Employers' Application is identical to the scope of "the employees" to be covered by the Union's Application. The CEPU argued that "the employees" referred to in ss.248-252 are "the employees who will be covered by the Agreement" because s.248(2) requires applicants to specify the scope of the employees who will be covered by the Agreement in their application. The CEPU rely on the findings of the Full Court in Ulan Coal Mines Pty Ltd v APESMA [2025] FCAFC 127 at [25], [2025] FCAFC 127; (2025) 311 FCR 352 at 362:

"... Section 248(2) requires that the application must specify the employers that will be covered by the agreement, the employees who will be covered by the agreement and the person (if any) nominated by the employers to make the application if the authorisation is made. The scope of the proposed agreement (as contained in the application) will inform the task of the Commission when determining whether the preconditions are satisfied, including those about which contention has arisen by this review, namely whether the presumption of clearly identifiable common interests, the authorisation is not contrary to the public interest and the operations and business activities of each of those employers are reasonably comparable, is displaced by the employers."

[12] Section 249(1B)(b) does not prevent, the CEPU argue, the Commission from granting the Union's Application before it determines the Employers' Application because the scope of "the employees" to be covered in each application is not identical.

[13] Although the terms of ss.248-252 are less than clear in certain respects, we do not see that there is any statutory injunction or prohibition on hearing the Union's Application until the Employers' Application is heard and resolved, even if in practical terms it may require the Employer's Application to be decided first.

[14] The Union's Application appears to us to have been properly made under s.248: the CEPU is a bargaining representative of employees who will be covered by the Agreement (s.248(1)), and the application specifies the employers and employees to be covered by the Agreement (s.248(2)). Although there is a contest about which employers can be covered by any resulting Authorisation, this can be resolved in arbitration.

[15] In the alternative, the Stay Applicants and supporting parties seek a stay of the Union's Application as a matter of discretion.

[16] There is no contest between the parties that there is a serious question in this case as to the interpretation and effect of s.249(1B)(b), and that s.589 confers a discretion to stay the Union's Application (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [11], (2000) 174 CLR 585; Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287 at 291; Visy Board Pty Ltd v Rustemovski [2018] FWCFB 1255 at [46]- [49]; APESMA v Wollongong Resources Pty Ltd [2024] FWC 280 at [19] and Application by Esso Australia Pty Ltd [2018] FWC 6244 at [10])).

[17] A moving party has a prima facie right to have their action tried in the ordinary course and the burden is on the party seeking the stay to show that it is just and convenient that the Commission interfere with those rights. An applicant's right of access to the Commission must not be lightly refused and it is said to be a grave matter to interfere with this entitlement by a stay of proceedings (see Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 at 253, Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19, Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [5]- [7] and [17]).

[18] We are not satisfied that the Stay Applicants, or any of the employers for that matter, will be materially prejudiced if the stay is not granted. If s.249(1B)(b) is a sequencing mechanism, as the Stay Applicants say it is, and the Commission has no discretion to refuse the Employers' Application if it meets the requisite criteria, then any authorisation that follows must be made before determining the Union's Application.

[19] However, there is the potential for prejudice to the CEPU if the Union Application is stayed pending determination of the Employers' Application. Except through the mechanisms in the Act, there does not appear to be any discretionary capacity to vary the categories or scope of employees covered by an authorisation after it is made. Depending on whether the Stay Applicants' construction of s.249(1B)(b) is correct, the possibility of hearing and determining the Employers' Application before hearing the Union's Application in a way that has a material affect on the outcome of the Union's Application beyond the operation of s.249(1B)(b) cannot be excluded.

[20] The Stay Applicants referred to the different onus that applies to applications by employers and applications by bargaining representatives. This, it is said, means that in concurrent proceedings the Category A employers would be required to lead positive evidence with respect to one application while simultaneously seeking to rebut the statutory presumptions in sections 249(1AA) and 249(3AB) with a broader but overlapping group in the other. We accept this to be a legitimate concern but consider that it is one that can appropriately be managed by the careful articulation of claims and responses to the two applications in the proceedings.

[21] In any event, if the Employers' Application is heard first, the wider scope of the Union's Application will be raised and prosecuted by the CEPU as a matter of public interest against the Employers' Application (see s.249(3)(b)) with the same or substantially similar evidentiary burden falling on the employers.

[22] Hearing both matters together in this case is consistent with s.577 of the FW Act and the need to perform the Commission's functions in a manner that is fair and just, quick, informal and avoids unnecessary technicalities.

[23] We accept that if both applications are heard together then the combined hearing would take longer than the likely hearing time if a stay was granted and the Full Bench heard only the Employers' Application. Some employers would therefore be inconvenienced if a stay is not granted - particularly the Category C employers.

[24] The reality is that there is likely to be significant overlap in evidence and submissions across the two competing applications - which has practical consequences for the determination of the Stay application:

(a) if a stay is granted then the hearing of the Employers' Application will be longer than it would otherwise be, including for the Category C employers, assuming that the CEPU agitates many of the competing aspects of the Union's Application in opposing the Employers' Application;

(b) both parties will likely run the first hearing with an eye to the second hearing, which in practice will cause significant overlap between the two cases;

(c) on the other hand, if a stay is not granted then the time and resources required in duplication of evidence and arguments in each matter is likely to be reduced.

[25] On balance, we find a serious question to be tried in relation to the interpretation and effect of s.249(1B)(b) but that the balance of convenience favours a hearing of the matters together.

[26] The Stay Applicants' application is dismissed.

[27] The CEPU has applied for an order that the Union's Application and the Employers' Application "be joined and be heard and determined together, with evidence in one being evidence in the other." It is not appropriate to make an interlocutory order requiring that the two applications be "determined" together because of the competing arguments about s.249(1B)(b).

[28] The Full Bench has not heard arguments about the CEPU's joinder application and will not make a final determination until any opposing party has had an opportunity to make contrary submissions.

[29] The joinder application will be determined on the papers. Any party wishing to be heard on the joinder application is to:

1. file any submissions in relation to the application by no later than Midday on Friday 27 March 2026;

2. file any submissions in response by no later than 4:00pm on Monday 30 March 2026.

M Minucci of Counsel, instructed by Kingston Reid for the Stay Applicants

P Boncardo of Counsel, instructed by Maurice Blackburn for the CEPU

B Rauf of Counsel, instructed by Sparke Helmore for Stowe Australia

G Morgan-Cocks of Counsel, instructed by D'Agostino Solictors for New Edge Group

J Arndt of Australian Business Lawyers and Advisors for Star Electrical Co

Printed by authority of the Commonwealth Government Printer