s.229 - Bargaining order

Application for a bargaining order to prevent vote on an enterprise agreement - requirements of s.229(4) not met - appropriate to consider the application in the circumstances - requirements of s.230(3)(a) not met - application for bargaining order dismissed.

[1] This decision concerns an application by the Transport Workers' Union of Australia (TWU) under s.229 of the Fair Work Act 2009 (Cth) (FW Act) for bargaining orders in relation to negotiations with Veolia Recycling and Recovery Pty Ltd (Veolia) for a proposed enterprise agreement that would cover 12 employees at its West Gosford Depots.

[2] On 16 February 2026, Veolia gave notice to its employees that the vote to approve the proposed enterprise agreement will take place from 2:00pm to 10:00pm on 24 February 2026.

[3] On 22 February 2026, the TWU sent correspondence to my Chambers seeking to amend application B2026/124 to include negotiations for a proposed enterprise agreement that will apply at Veolia's West Gosford Depots.

[4] On 23 February 2026, during a case management and directions hearing in matter B2026/124, I advised the parties that I will not accept an amendment under s.586 to include matters relating to bargaining for a different enterprise agreement.

[5] The TWU subsequently made this application and is seeking the following order:

1. An order restraining the vote from occurring on 24 February 2026 until the parties have engaged in further bargaining and until Veolia has put in place voting arrangements that ensure safe, practical and fair participation for all employees (including after-hours helpdesk support for the entire voting window and rectification of credential/contact errors).

[6] The matter was listed for hearing at 1:00pm and was heard together with matter B2026/124, with the evidence in one proceeding being evidence in the other.

[7] Witness statements were tendered from the following persons, who also gave evidence at the hearing:

• Mr Daryll Elliott, TWU Official (Exhibit A1); and

• Mr Adam Nisbett, employed by Veolia Recycling and Recovery Pty Ltd as Regional Collections Manager and employer bargaining representative (Exhibit R1).

[8] For the reasons that follow, the application is dismissed.

[9] On 6 June 2025, Veolia agreed to commenced bargaining for the proposed enterprise agreement.

[10] On 18 June 2025, the parties held the first bargaining meeting. At this meeting, Veolia presented its log of claims, although it is unclear whether Veolia set out its position on wages in detail. The TWU provided an overview of its position regarding the duration of the proposed enterprise agreement.

[11] On 7 August 2025, a second bargaining meeting was held. At this meeting, Veolia set out its position on wages, and the TWU presented its log of claims.

[12] Mr Nisbett stated that following the first two meetings, he formed the view that the TWU did not provide any meaningful feedback to Veolia's proposal and therefore, Veolia should move to put its position to a vote.

[13] On 8 September 2025, Veolia gave notice to the employees that a vote on the proposed enterprise agreement will take place on 17 September 2025.

[14] On 11 September 2025, the TWU sent correspondence to Veolia alleging that Veolia was not meeting the good faith bargaining requirements and invited Veolia to withdraw the vote and continue to bargain.

[15] On 12 September 2025, Veolia sent correspondence to the TWU in which it denied that it was not meeting the good faith bargaining requirements but nonetheless had decided to withdraw the vote and continue bargaining.

[16] A further bargaining meeting took place on 18 September 2025, following which the parties paused bargaining.

[17] On 10 February 2026, Veolia sent a copy of its proposed enterprise agreement to the bargaining representatives in advance of a meeting on 13 February 2026. Mr Nisbett stated that at the meeting on 13 February 2026, none of the bargaining representatives had any questions or feedback in response to the proposed agreement.

[18] At 2:49pm on 16 February 2026, Veolia sent correspondence to the employees covered by the proposed enterprise agreement advising that the vote will take place from 2:00pm to 10:00pm on Tuesday 24 February 2026. Mr Nisbett stated that this correspondence was sent to the employees work email address and if an employee had registered a personal email with Veolia, to the personal email address. The covering email stated:

Today marks the commencement of the access period for the Veolia Central Coast Waste Transport Enterprise Agreement 2025.

Please see attached Notification of Voting and Explanatory Statement, Vero Voting Guide, copy of the Agreement and Award. Copies of these documents will also be displayed onsite and details will be explained as part of a toolbox session during the access period.

If you have any questions, please reach out to your Supervisor or Manager.

[19] The Notification of Voting states that the vote will be open from 2:00pm to 10:00pm on Tuesday 24 February 2026 and will be conducted by Vero Voting. The method of voting will be by SMS and employees will be asked to respond to the following SMS Message:

1. When the vote opens, Vero Voting will send you an SMS asking:

"Do you vote in favour of VEOLIA CENTRAL COAST WASTE TRANSPORT ENTERPRISE AGREEMENT 2025?"

[20] The materials sent to the employees included a Vero Voting How to Vote Guide which stated, amongst other things, that technical support will be available up to 8:00pm (AEST) on the day of the vote.

[21] Mr Nisbett stated that if technical issues with Vero Voting prevented employees voting, the vote will be rescheduled.

[22] At 4:48pm on 16 February 2026, Veolia sent a copy of the "access period" correspondence sent to the TWU.

[23] At 3:20pm on Sunday 22 February 2026, the TWU to correspondence to my Chambers seeking to amend matter B2026/124 to include matters relating to bargaining for the West Gosford Depots.

[24] At 9.33pm on Sunday 22 February 2026, the TWU sent correspondence to Veolia stating that Veolia had not met the good faith bargaining requirements by unilaterally commencing the "access period" and by limiting the voting period to a period of 8 hours, offering an electronic voting method without technical support for the whole of the voting period, and sending the "access period" correspondence to outdated company email accounts or email accounts that have not been used for extended periods. The TWU advised that it intends to make an application to the Commission and would rely on this correspondence to substantiate that Veolia was put on notice that it had not met the good faith bargaining requirements. The TWU encouraged Veolia to discontinue the "access period" and not proceed with the vote. The TWU requested a response before the commencement of the case management and directions hearing in matter B2026/135, which was listed to commence at 9:30am on 23 February 2026.

[25] At 10:19am on 23 February 2026, the TWU lodged the application in the Commission.

[26] Section 229 of the FW Act provides as follows:

(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.

[27] Section 230 of the FW Act provides as follows:

(1) FWA 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) FWA is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) FWA 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).

[28] Section 228 of the FW Act provides as follows:

(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.

[29] The TWU submits that Veolia has not met the good faith bargaining requirements in two ways:

(i) By issuing the "access period" correspondence to employees prior to issuing a copy of that material to the TWU is a failure to meet s.228(1)(b) of the FW Act by not disclosing relevant information in a timely manner; and

(ii) That the scheduling of the voting window from 2:00pm to 10:00pm, with limited technical support, at the end of long shifts is designed to drive down participation in the vote and reduce the likelihood of a no vote. The TWU contends this is contrary to s.228(1)(e) of the FW Act in that it is capricious or unfair conduct that undermines collective bargaining.

[30] The TWU submits that for the purposes of s.229(4) of the FW Act, it has provided notice of its concerns to Veolia, that given the matters are identical to those in Matter B2026/135, the Commission should find that the TWU has given Veolia a reasonable time to respond to those concerns, or exercise its discretion under s.229(5) to consider the application.

[31] The TWU did not challenge Veolia's ability to put the proposed enterprise agreement to a vote. Rather, the TWU submitted that it is the process by which employees can vote and the notification of the vote and the provision of the "access period" correspondence. In particular, the TWU noted:

• That between 2:00pm and 5:30pm employees are completing their shifts;

• That the shifts can be up to 12 hours in duration and voting will take place when drivers can be fatigued;

• That employees are being asked to vote at a time when they are resting or spending time with family; and

• That Vero Voting will not be available to provide technical support during the period of 8:00pm to 10:00pm.

[32] The TWU submitted that the circumstances of this case can be distinguished from those in Transport Workers' Union of Australia v Transit (NSW) Services Pty Ltd [2016] FWCFB 997 (TWU v Transit Services) and Transport Workers' Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia) [2024] FWC 3222.

[33] Veolia submits that the TWU has not complied with the notice requirements in s.229(4)(c) of the FW Act, that the Commission should not exercise its discretion under s.229(5) and that the application should be dismissed.

[34] Veolia submits that it has not had a reasonable time to respond to the TWU's concerns, and considering the time-frames involved, Veolia will be deprived of any opportunity to appeal the decision if the order is granted.

[35] Veolia submits that it is not required to seek approval of the bargaining representatives, including union bargaining representatives, before it can ask its employees to approve an enterprise agreement by voting on it. Moreover, Veolia cited the decision in Transport Workers' Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia) [2024] FWC 3222 and submitted that knowledge that an employer is putting an enterprise agreement to a vote is not the kind of relevant information covered by s.228(1)(b).

[36] Veolia submits it sent the "access period" correspondence to all personal and work email addresses that it had recorded and placed copies of the documents at the West Gosford Depots. Veolia submits that to the extent there are issues with the mechanics of the vote, that is a matter that goes to whether the proposed agreement was genuinely agreed to rather than an issue of whether the good faith bargaining requirements have been met.

[37] This application raises two issues: the notice requirements and the concerns about whether Veolia is meeting the good faith bargaining requirements.

[38] In relation to the notice requirements, I am not satisfied that the requirement in s.229(4) (c) has been met. The TWU provided its concerns at 9:33pm on a Sunday night prior to the case management and directions hearing in a different but related matter and did so, after it had sent correspondence to the Commission seeking to amend matter B2026/124 to include the West Gosford Depots.

[39] Veolia was not given a reasonable time to respond to the TWU's concerns. That is sufficient to dismiss the TWU application. However, if I am wrong in relation to my findings on the notification, and in circumstances where an order to prevent a vote going ahead the matter is sought and the matter is proceeding expeditiously, it is appropriate to otherwise consider the TWU application (See s.229(5) of the FW Act).

[40] In relation to the issue of whether the timing of the application deprives Veolia an opportunity to appeal, applications made s.229 of the FW Act that seek orders to prevent a vote from proceeding are usually held and determined expeditiously, having regard to the notice requirements for a ballot to take place. In this case there is nothing before me that suggests the TWU intentionally delayed commencing the application in an attempt to thwart any appeal rights that Veolia might exercise if the order is granted - bearing in mind such a strategy would work against the TWU if the application is dismissed.

[41] In relation to Veolia issuing the "access period" correspondence prior to notifying the TWU, I agree with the observation of Lake DP in Transport Workers' Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia) [2024] FWC 3222 that information about whether an employer is putting an agreement to a vote (such as the "access period" correspondence) is not the kind of relevant information covered under s.228(1)(b). As the Full Bench in TWU v Transit Services stated, s.228 is concerned with the process of bargaining, not the mechanics of the conduct of the voting process. Furthermore, there is no absolute requirement for the agreement of the bargaining representatives prior to the conduct of a vote: Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Tahmoor Coal Pty Ltd [2010] FWAFB 3510. In any event, the TWU received notification of the timing and method of the vote, along with the proposed enterprise agreement and explanatory material about 2 hours after the employees.

[42] In relation to the timing and period of the vote, as well as the notification of that to the employees, I am not satisfied that Veolia has engaged in capricious or unfair conduct that undermines collective bargaining or has otherwise not met the good faith bargaining requirements. Veolia sent the "access period" correspondence to all employees personal and work-related email addresses. Furthermore, as set out in the covering correspondence to employees on 16 February 2026, copies of the materials were available in the West Gosford Depots. The TWU did not challenge this. The process of casting a vote is to simply type yes or no in reply to an SMS text message. In circumstances where the TWU does not take issue with Veolia's decision to put the agreement to a vote, if there are any issues as to whether the employees were provided with a reasonable opportunity to consider and vote on the proposed agreement in a free and informed manner, including by informing the employees of the time, place and method for the vote, they will be matters for consideration as part of the Commission's approval of the enterprise agreement: TWU v Transit Services at [15]-[17].

[43] I am not satisfied that Veolia has not met, or is not meeting, the good faith bargaining requirements. Therefore, the requirement in s.230(3)(a)(i) of the FW Act has not been met. In those circumstances, I do not have any power to make the orders sought by the TWU.

S Nasser for the Transport Workers' Union of Australia.

J Micallef for Veolia Recycling and Recovery Pty Ltd

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