1 Fair Work Act 2009 s.604 - Appeal of decisions Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v PEER Education Employment & Training Ltd (C2026/598) VICE PRESIDENT GIBIAN DEPUTY PRESIDENT BOYCE DEPUTY PRESIDENT GRAYSON SYDNEY, 5 MAY 2026 Appeal from decision of Commissioner Platt made on 14 January 2026 at Adelaide in Matter Number B2025/1773 – Application for bargaining orders – Whether breach of good faith bargaining requirements to ask employees to approve a single-enterprise agreement where supported bargaining application on foot – Offer of financial benefit outside of terms of proposed agreement – Decision concerned vote in November/December 2025 – Agreement not approved by vote – Whether in the public interest, or otherwise appropriate, to grant permission to appeal – Permission to appeal refused. Introduction [1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) seeks permission to appeal from a decision of a Commissioner of the Fair Work Commission: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v PEER Education Employment & Training Ltd [2026] FWC 113. [2] The decision arose from an application under s 229 of the Fair Work Act 2009 (Cth) (the FW Act) for bargaining orders with respect to bargaining for an enterprise agreement to cover employees of PEER Education Employment & Training Ltd (PEER). In short, the CEPU contended that PEER had not met the good faith bargaining requirements in s 228 by making misrepresentations to the relevant employees in relation to the financial impact of multi- employer bargaining, by offering employees a $250 gift card if the agreement was approved and because the agreement was put to a vote in circumstances in which an application had been made by the CEPU for a supported bargaining authorisation. The Commissioner rejected those contentions and concluded that PEER had not acted contrary to the good faith bargaining requirements in any of the ways contended by the CEPU. [3] Central to the issues sought to be raised by the CEPU on appeal is that it had, on 14 October 2025, applied for a supported bargaining authorisation under s 242 of the FW Act to [2026] FWCFB 104 DECISION [2026] FWCFB 104 2 facilitate bargaining for a multi-enterprise agreement. The application seeks an authorisation to apply to a number of identified employers, including PEER, who operate as Group Training Organisations and their employees engaged pursuant to a training or apprenticeship contract in the electrical, communications, plumbing and refrigeration trades. If a single-enterprise agreement is made that covers an employee that has not passed its nominal expiry date, the employee cannot be specified in a supported bargaining authorisation unless the Commission is satisfied that the employer’s main intention in making the agreement with the employees covered by it was to avoid being specified in a supported bargaining authorisation: FW Act, s 243A(1) and (3). The supported bargaining application is yet to be determined. [4] The CEPU’s application for bargaining orders was made on 26 November 2025. At that time, a ballot for employees to vote on a single-enterprise agreement proposed by PEER was scheduled to open on 28 November 2025 and close on 2 December 2025. In those circumstances, the CEPU sought an interim order that PEER not take any steps to conduct any ballot with respect to the proposed single-enterprise agreement pending determination of its application. The Commissioner declined to make the interim order sought by the CEPU at an urgent conference convened on 27 November 2025. However, PEER gave an undertaking that the votes would be secured but not counted pending determination of the application. As such, the vote proceeded between 28 November and 2 December 2025. [5] A hearing with respect to the substantive application then took place on 1 December 2025. At the conclusion of the hearing, the Commissioner made an order to reflect the undertaking given by PEER to secure but not to count the votes cast by employees pending the determination of the application. The Commissioner subsequently published an order on 3 December 2025 (Print PR794500) in the following terms: As foreshadowed during the hearing of this matter, I make the following Interim Order (with consent of the parties) that took effect from 3:50pm Monday, 1 December 2025: [1] Pursuant to s.230 and s.589 of the Fair Work Act 2009 (“the Act”) the Respondent is to secure and preserve the votes cast and any electronic files associated with the ballot processes for the proposed enterprise agreement, scheduled to conclude at 4:00pm on 2 December 2025, but not proceed to examine or count the ballots until further order of the Commission. [6] The Commissioner then handed down his decision on 14 January 2026 and, having concluded that PEER had not contravened the good faith bargaining requirements in s 228 of the FW Act, dismissed the application. The Commissioner purported to extend the operation of the interim order he had made until 28 January 2026 preventing the votes cast by employees being counted. The intended effect of doing so was to permit the CEPU to seek a stay of the decision in the event that it sought to appeal the decision. [7] The CEPU filed its notice of appeal on 22 January 2026. The notice of appeal sought a ‘stay of the lifting of the interim order’. Whether that was, in fact, an application for a stay of the decision of the Commissioner for the purposes of s 606(1) of the FW Act or for an interim order pending appeal was not entirely clear. In any event, the stay application was heard by Vice President Gibian on 27 January 2026. For reasons given ex tempore at the conclusion of the hearing, the Vice President dismissed the application for a stay and revoked the interim order purportedly made by the Commissioner extending the restraint on counting the votes cast by PEER employees until 28 January 2026. [2026] FWCFB 104 3 [8] The consequence was that the votes could then be counted. The Commission was subsequently informed that the employees had voted not to approve the single-enterprise agreement proposed by PEER. In those circumstances, the CEPU indicated that it pressed its application for permission to appeal and, if permission is granted, its appeal against the decision of the Commissioner. The CEPU’s notice of appeal, as filed, contained six grounds of appeal. In light of the course of events that we have described, the CEPU only pressed grounds 4 and 6 on hearing of the appeal. In summary, those grounds raise two issues: (a) Whether the Commissioner erred in failing to find that it was contrary to the good faith bargaining requirements for PEER to proceed to a ballot for a single- enterprise agreement while a supported bargaining authorisation application was on foot? (b) Whether the Commissioner erred in failing to find that it was contrary to the good faith bargaining requirements for PEER to offer a $250 gift card to employees on approval of the proposed enterprise agreement in circumstances where this was not a term of the agreement? Permission to appeal [9] Section 604(1) of the Act makes it clear that there is no right to appeal, and an appeal may only be made with the permission of the Commission. Generally, the Full Bench must grant permission to appeal if satisfied that is in the public interest to do so in accordance with s 604(2). Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted: Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel and Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]-[12]. [10] The task of assessing whether it is in the public interest to grant permission to appeal is a discretionary one involving a broad value judgment: O’Sullivan v Farrer (1989) 168 CLR 210 (Mason CJ, Brennan, Dawson and Gaudron JJ) applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [44]-[46] (Buchanan J) and Australian Postal Corporation v D’Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [102] (Bromberg J). The public interest is not satisfied simply by the identification of error or a preference for a different result: Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28]; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28]. [11] The Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) IR 297, identified (at [27]) some of the circumstances that may attract the public interest: ... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the [2026] FWCFB 104 4 result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. [12] Although the observations in GlaxoSmithKline provide useful guidance as to the type of circumstances that might satisfy the Commission that the public interest requires permission to appeal to be granted, it is not possible, or appropriate, to attempt to confine or fetter the broad discretionary assessment required to be made in each case as to whether it is in the public interest to grant permission to appeal: Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364 ay [40]. [13] One reason why permission to appeal might be refused is that the appeal lacks utility: Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2012] FWAFB 7791 at [8]-[9]; Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia [2013] FWCFB 4250 at [11]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Shoalhaven Starches Pty Ltd (t/as Manildra Group) [2024] FWCFB 315 at [29]: Mpenda v St Vincent’s Hospital Melbourne Ltd [2025] FWCFB 152 at [25]. The reason for this is not difficult to discern. It will rarely be in the public interest to grant permission to appeal if the outcome of the appeal will not have any practical implications for the parties. Granting permission to appeal in those circumstances is also likely to result in the Full Bench providing what is, in substance, an advisory opinion. [14] The decision of the Commissioner was, obviously enough, directed at the circumstances of the ballot which took place in late November and early December 2025. The issues raised on the appeal concern whether the Commissioner erred in finding that PEER did not breach the good faith bargaining requirements by requesting the employees approve a single-enterprise agreement in circumstances in which a supported bargaining application was before the Commission and in which PEER had offered, outside of the terms of the proposed agreement, a $250 gift card to employees if the agreement was approved at that time. That vote has happened. The proposed agreement was not approved and, at least at the time of the hearing of the appeal, PEER had taken no steps to request its employees approve a further single-enterprise agreement. [15] It cannot be said that the relief sought at first instance would now be entirely futile. The CEPU sought bargaining orders which included an order that PEER not take any steps to conduct a ballot in respect of the proposed single-enterprise agreement until the application for a supported bargaining authorisation filed has been determined. That application is still to be determined and such an order, if granted, would have utility. However, it is unlikely that the orders sought could now be made purely because of a contravention of the good faith bargaining requirements leading up to the vote in late November and early December 2025. The CEPU acknowledged that, if its appeal was successful, it would be necessary to remit the matter for redetermination to allow the filing of new evidence as to events subsequent to the decision at first instance. The CEPU accepts, in our view correctly, that the application for bargaining orders would have to be redetermined with the benefit of updated evidence in relation to the current circumstances. [16] The question is whether permission to appeal should be granted where that is the only potential consequence of success on the part of the CEPU. We do not consider it should. If PEER was to put a further single-enterprise agreement to a vote before the CEPU’s supported bargaining authorisation application is determined, it would be open to the CEPU to seek [2026] FWCFB 104 5 bargaining orders if it believed that PEER had not met or was not meeting the good faith bargaining requirements. The Commission would have to be satisfied as to that matter for the purposes of s 230(3)(a)(i) on the material then before it for any bargaining order to be made. Any future application would be determined on the evidence and submissions before the Commission and the circumstances that exist at that time. A member of the Commission hearing any further application for bargaining order would not be constrained by the decision of the Commissioner which is subject of this appeal. [17] The CEPU contends that permission to appeal should nonetheless be granted because its appeal raises two questions of importance and general application to the jurisprudence of the Commission, namely, whether and when it might be consistent with good faith bargaining for an employer to attempt to unilaterally procure agreement to a single-enterprise agreement when an application for a supported bargaining authorisation is before the Commission and whether the offering of inducements outside of the terms of an agreement offends the good faith bargaining requirements. The CEPU says that a decision of the Full Bench in relation to these questions will provide guidance to the parties affected by its supported bargaining authorisation application and to other industrial parties in similar circumstances. [18] The questions raised in the appeal are important and might be attract a grant of permission to appeal in a case in which they arise and require determination. However, in our opinion, a decision in relation to the appeal in this matter has limited potential to provide general guidance in relation to the questions raised. [19] In relation to the first issue, we accept that the conduct of an employer in requesting employees to approve a single-enterprise agreement in circumstances in which a supported bargaining authorisation is on foot might involve a contravention of the good faith bargaining requirements in that it might constitute capricious or unfair conduct that undermines freedom of association or collective bargaining for the purposes of s 228(1)(e). That is particularly so because a supported bargaining authorisation is directed at addressing constraints on the ability of the relevant employees and employers to bargain at an enterprise level, including constraints relating to lack of skills, resources, bargaining strength or previous bargaining experience: FW Act, s 241(c). However, the CEPU does not submit that it will, in all cases, constitute a contravention of the good faith bargaining requirements to ask employees to approve a single- enterprise agreement in those circumstances. Each case will turn on the particular circumstances in which the agreement is put to a vote. Considerations such as the stage the supported bargaining authorisation proceedings have reached, the reasons of the employer for pursuing a single-enterprise agreement and the ability of the employee cohort to adequately bargain at an enterprise level may be relevant. We are not satisfied that it is in the public interest, or otherwise appropriate, to grant permission to appeal in this matter in order for the Full Bench to endeavour to provide general guidance in relation to the interaction between the good faith bargaining requirements and the fact of a supported bargaining application. [20] In relation to the second issue, the finding of the Commissioner that the conduct of offering a gift card to the value of $250 if the proposed single-enterprise agreement was approved did not breach the good faith bargaining requirements was made in relation to the offer made in the lead up to the vote in late November and early December 2025. It is possible that an inducement outside the terms of a proposed agreement might involve capricious or unfair conduct that undermines freedom of association or collective bargaining for the purposes [2026] FWCFB 104 6 of s 228(1)(e). Again, it appears to us that whether it will do so will depend on the nature of the inducement and the whole of the circumstances of the bargaining. It is a matter of speculation as to whether PEER will, if it again requests its employees to approve a single-enterprise agreement, offer a $250 gift card or any other benefit or incentive if that agreement is approved. We were informed during the appeal hearing that PEER’s present intention, if it puts a further agreement to a vote, is to include a $250 payment in the terms of the proposed agreement. If an inducement outside of the proposed agreement is offered in the future, it would be open to the CEPU to seek a bargaining order at that time. We are not satisfied it is in the public interest, or otherwise appropriate, to grant permission to appeal to consider the correctness of the Commissioner’s decision in circumstances in which it is unclear whether PEER will ask its employees to again approve a single-employer agreement or, if it does, whether an inducement outside the terms of the proposed agreement will be offered. Conclusion and disposition [21] For these reasons, we are not satisfied it is the public interest to grant permission to appeal for the purposes of s 604(2) of the FW Act or that it is otherwise appropriate to exercise our discretion to grant permission to appeal. [22] The Full Bench orders that: Permission to appeal is refused. VICE PRESIDENT Appearances: P Dean, of counsel, instructed by J Fox for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. A Lazarevich, of counsel, instructed by Norman Waterhouse for PEER Education Employment & Training Ltd. Hearing details: 14 April 2026. Sydney (in person). Printed by authority of the Commonwealth Government Printer <PR799724>