s.229 - Bargaining order

Construction, Forestry and Maritime Employees Union

s.229 - Bargaining order - Provision of declaration of results - Order granted

[1] On 11 December 2025 the Construction, Forestry and Maritime Employees Union (CFMEU) filed an application (Application) pursuant to section 229 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC).

[2] The Application sought a bargaining order against Total AMS Pty Ltd trading as TAMS Group (TAMS) in relation to the negotiation of a proposed new enterprise agreement to replace the Total AMS Resource Industry Enterprise Agreement 2021 (Existing Agreement).

• [3] The Existing Agreement covers TAMS, the CFMEU and approximately 120 employees of TAMS employed in the maritime classifications set out in the Schedule of the Exising Agreement when engaged in Cape Preston Port Company marines services work (Employees).[1]

[4] CFMEU and TAMS have been bargaining since June 2025 for a new agreement to replace the Existing Agreement (Replacement Agreement). On 22 November 2025 TAMS put a Replacement Agreement to an electronic ballot which was unsuccessful. The CFMEU have requested a copy of the Declaration of Result (Results) to inform their future approach to bargaining. TAMS have refused to provide a copy of the Results to the CFMEU.

[5] The CFMEU seek an order that TAMS provide the CFMEU with a copy of the Results within seven days of an order being issued (Order).

[6] A conference was conducted on 15 January 2026 in an endeavour to resolve the dispute by mediation and/or conciliation however the matter in dispute remained unresolved.

[7] Directions for the filing of materials in advance of the Hearing were issued to the parties on 16 January 2026 and subsequently amended on 6 February 2026 (Directions).

[8] The CFMEU filed a witness statement by Mr George Gakis the Deputy Secretary of the Western Australian branch of the Maritime Union of Australia division of the CFMEU (Gakis) setting out his evidence in chief. Mr Gakis is responsible for representing CFMEU members in the negotiations for the Replacement Agreement.

[9] TAMS chose not to file any witness evidence.

[10] A digital court book containing the evidence and submissions of the parties was prepared by the parties and filed on 19 February 2026 (DCB).

[11] The evidence filed by the parties did not disclose any factual dispute. In these circumstances, at the request of the parties, I have determined the Application solely on the materials filed by the parties without a hearing.

[12] In reaching my decision I have considered all the submissions made, and the evidence tendered by, the parties even if not expressly referred to in these reasons for decision.

• [13] TAMS Australia operates in the Maritime Industry.[2]

[14] The Existing Agreement covers TAMS, the CFEMU and the Employees. The nominal expiry day of the Existing Agreement is 16 June 2025.

• [15] The parties have been bargaining for the Replacement Agreement since June 2025.[3]

• [16] On 22 November 2025 TAMS put the Replacement Agreement to an online vote which was conducted by Vero Voting.[4] A majority of the Employees voted not to approve the Replacement Agreement.

• [17] On 25 November 2025 Mr Gakis requested a copy of the Results from TAMS.[5] The Results is a document issued by the voting company after the ballot has been conducted which provides a breakdown of total eligible voters, how many voted, and of those, how many voted yes and how many voted no. It also gives the total number of employees who abstained from voting.[6]

• [18] Mr Gakis says he routinely requests a copy of such documents after an unsuccessful ballot so that he can better understand of the views of Employees and progress bargaining more effectively. According to Mr Gakis:[7]

"It is feedback on our negotiations, or rather constructive criticism that then helps us reassess options."

• [19] The evidence of Mr Gakis is that whenever he requests a copy of such documents they are voluntarily provided by employers.[8]

[20] TAMS chose not to cross examine Mr Gakis about his evidence.

• [21] On 26 November 2025 and 1 December 2025 TAMS informed the CFMEU that it would not provide it with a copy of the Results.[9]

• [22] On 5 December 2025 the CFMEU sent TAMS a written notice of concern, raising its concern that the refusal to provide the Notice was in breach of the good faith bargaining provisions of the FW Act and requesting that TAMS provide the Results by 5pm Monday 8 December 2025 (Notice).[10]

• [23] On 9 December 2025 TAMS responded to the Notice (Response) refusing to provide the Results on the grounds that it believed the Results were not relevant information for the purposes bargaining and are not connected with the bargaining process stating as follows:[11]

"In these circumstances, our client is not prepared to provide you with the Declaration of Results or any to resolve this issue by making some other offer.

We note, the CFMEU has provided its letter to our client with only one business day in which to respond before threatening to invoke the law to seek "bargaining orders in the relevant jurisdiction." We consider that it is far more reasonable for the CFMEU to respond to the matters raised in this letter before taking these steps.

Our client may seek costs in respect of its defence of the application on the basis that:

• the application does not have reasonable cause; or

• it should have been reasonably apparent to the CFMEU that the application had no reasonable prospect of success"

[24] The Application was filed on 11 December 2025.

• [25] On 15 January 2026 the parties attended a conference to endeavour to resolve the issues in dispute. The dispute could not be resolved. [12]

• [26] TAMS continues to refuse to provide the CFMEU with a copy of the Results. [13]

• [27] The parties agree that the Results do not contain confidential or commercial sensitive information.[14]

[28] A bargaining representative may only apply for a bargaining order if the prerequisites set out in sub-section 229(4) of the FW Act have been satisfied. Sub section 229(4) of the FW Act provides that:

"The bargaining representative may only apply for the bargaining order if the bargaining representative:

1. one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

1. 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."

[29] It is not in dispute, and I am satisfied that, the CFMEU is a bargaining representative for the Proposed Agreement, and has standing to make the Application in its capacity as a bargaining representative and has made the Application.

[30] The CFMEU is concerned that TAMS, in its capacity as a bargaining representative for the Proposed Agreement, has not met and is not meeting the good faith bargaining requirements set out in section 228 of the FW Act by refusing to provide the CFMEU with a copy of the Results.

• [31] On 25 November 2025 Mr Gakis requested a copy of the Results. [15] On 26 November 2025, and again in writing on 1 December 2025, TAMS refused to provide the Results.

• [32] On 5 December 2025 the CFMEU sent the Notice to TAMS giving TAMS notice that it believed the refusal by TAMS to provide the Results was in breach of the good faith bargaining provisions contained in section 228 of the FW Act and requesting that TAMS provide the Results by 5pm Monday 8 December 2025. [16]

• [33] TAMS responded on 9 December 2025 confirming it refused to provide the Results to the CFMEU. [17]

[34] TAMS submit that the CFMEU has not satisfied the prerequisites set out in subsection 229(4)(d) of the FW Act, because TAMS has responded appropriately to the concern by inviting the CFMEU to respond to its Response to the Notice.

• [35] The unchallenged evidence of Mr Gakis is that he routinely requests result information and that it is provide voluntarily by employers. The CFMEU requested the Results on at least two occasions and was refused the results on at least three occasions. In the correspondence of 9 December 2025 the legal representatives of TAMS stated:[18]

"In these circumstances, our client is not prepared to provide you with the Declaration of Results or any to resolve this issue by making some other offer.

[36] The Notice was provided on 5 December 2025 and requested a response by close of business three days later on 8 December 2025. Notwithstanding that a response was not sent until 9 December 2025 the CFMEU did not lodge the Application until 11 December 2025.

[37] It is clear from the correspondence between the parties and the subsequent proceedings in the FWC that the parties have opposing, and fixed, views about the application of the good faith bargaining provisions to the request by the CFMEU for a copy of the Results.

[38] For the reasons above I am satisfied that the CFMEU objectively had a reason for forming the view that TAMS had not responded appropriately to the Notice and that the CFMEU's concerns were unlikely to be resolved directly with TAMS.

[39] I am therefore satisfied that the prerequisites set out in subsection 229(4) of the FW Act have been satisfied and that the CFMEU is eligible to make the Application.

[40] Section 230 of the FW Act sets out the circumstances in which 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.

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;

(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 low-paid 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)."

[41] I am satisfied that the CFMEU has standing to make the Application in its capacity as a bargaining representative, has satisfied the prerequisites set out in subsection 229(4) of the FW Act and has made the Application. I am therefore satisfied that the requirements in subsection 230(1)(a) of the FW Act have been met.

[42] It is not contested that TAMS has agreed to bargaining for the Proposed Agreement. I am therefore satisfied that the requirements in subsection 230(2) of the FW Act have been met.

[43] The CFMEU asserts that one or more of the bargaining representatives for the Proposed Agreement have not met or are not meeting the good faith bargaining requirements. In particular, that TAMS, in its capacity as a bargaining representative for the Proposed Agreement, has not met and is not meeting the good faith bargaining requirements set out in section 228 of the FW Act by refusing to provide the CFMEU with the Results.

[44] The good faith bargaining requirements are set out in section 228 of the FW Act. Section 228 provides that:

"(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."

[45] The CFMEU submit that TAMS refusal to provide the Results is in breach of the good faith bargaining obligation to disclose relevant information (other than confidential or commercially sensitive information) in a timely manner.

[46] The CFMEU maintains that the Results contain information which is relevant to bargaining because voting results:

1. informs the CFMEU as to how bargaining is progressing;
2. provides a detailed breakdown of voters and the manner in which they have voted;
3. provides trajectory for the CFMEU as to how to redirect bargaining negotiations on issues that matter;
4. it is a document relied upon by the CFMEU and has proven to be a common yet effective tool in previous bargaining negotiations; and
5. is used by the CFMEU as a measuring tool on its performance in the negotiations and provides a form of constructive criticism.

[47] TAMS submits that none of these reasons have a relevance for the matters being bargained, it says the Results do not show a breakdown of voters and submits that it has complied with its good faith bargaining obligations.

[48] TAMS concede that the Results do not contain confidential or commercially sensitive information.

[49] The evidence of Mr Gakis as to the use he makes of the information contained in post ballot reports was unchallenged by TAMS as it chose not to cross examination him or provide its own witness evidence.

[50] TAMS have provided no explanation as to why it opposes the provision of the information other than that it believes it is not compelled by statute to provide the information. There may circumstances where it is not appropriate to share the information for example if the cohort is extremely small or the data is so granular so as to identify individual voters. There is however no suggestion that this is the case in these proceedings.

[51] What proportion of employees vote in favour of an agreement is critically relevant to bargaining. At either end of the extreme, and to varying degrees in between, whether none agree or 49% agree is crucial information in terms of whether the proposed terms and conditions are satisfactory to the majority of the workforce, or whether either side should give consideration to modifying their bargaining position to avoid protracted bargaining. The information is useful in informing unions who do not have high density or capacity to communicate effectively with their members whether the claims being pursued are in fact supported by a majority of the workforce. The information may even be helpful to ascertain whether a party is bargaining in good faith, if employee sentiment as articulated by that party does not match voting outcomes. Transparency of employee voting trends can assist in avoiding or reducing industrial action and its harmful impact on employees and businesses alike if it is apparent that there is close to majority support for the proposed agreement or that resolution is far way.

[52] While the Results were not tendered in these proceedings the information contained in reports of the outcome of ballots may even provide an indication about how particular workgroups or worksites voted for example where there are cohorts with different work locations. This can assist the bargaining parties understand whether bargaining concessions should be made in relation to the whole cohort or a particular subset.

[53] TAMS made no submissions and provided no evidence to suggest that the provision of the Results would not assist the narrowing of issues or increase the efficiency of bargaining.

• [54] I am satisfied that it is reasonable in all the circumstances to make the order sought by the CFMEU. An order[19] to this effect will be issued with this decision.

[1] Total AMS Pty Ltd t/a TAMS Group [2021] FWCA 3462, Total AMS Resource Industry Enterprise Agreement 2021 at clause 4.

[19] PR796738.

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