Federal Court of Australia

CSRP Pty Ltd v Australian Workers' Union [2026] FCA 644

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth) (Rules), the time for service of the respondent's interlocutory application filed 15 May 2026 (respondent's interlocutory application) is shortened under r 8.06 to 12 hours or such other time as appropriate.

2.    Pursuant to r 10.24(1)(a) of the Rules, service of the respondent's interlocutory application, and accompanying affidavit, is effected by sending the documents to the email address of the solicitors for the first and second cross-respondents (who are the applicants in the proceeding) at sonia.millen@allens.com.au and katherine.dommerson@allens.com.au.

3.    Pursuant to r 10.24(1)(a) of the Rules, service of the respondent's interlocutory application, and accompanying affidavit, is effected on the third cross-respondent by sending the documents to kevin@etuaustralia.org.au.

4.    The respondent's claim for interlocutory relief is otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

VANDONGEN J:

1    CSRP Pty Ltd (CSRP) is the first applicant, and the first cross-respondent, in these proceedings. CSRP and certain of its employees are covered by an enterprise agreement, which nominally expired on 25 May 2021 (CSRP EA). The CSRP EA continues to apply to CSRP and to those employees. The second applicant, and second cross-respondent, W Hub Pty Ltd (W Hub), and certain of its employees are also covered by an enterprise agreement (W Hub EA). The W Hub EA nominally expired on 18 January 2025. However, the W Hub EA also continues to apply to W Hub and to its employees.

2    The Australian Workers' Union (AWU) is the respondent and cross-claimant, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is the third cross-respondent.

3    Under s 173(1) of the Fair Work Act 2009 (Cth), an employer is obliged to take all reasonable steps to notify each employee who will be covered by a proposed enterprise agreement and, relevantly, who is employed at the time the employer receives a request in writing to bargain under s 173(2A), of the right to be represented by a bargaining representative: see also s 173(2)(aa). The step of notifying employees under s 173(1) marks the beginning of enterprise bargaining in relation to a proposed enterprise agreement that will replace an earlier enterprise agreement that has passed its nominal expiry date.

4    The AWU contends that it gave a request in writing under s 173(2A) to both CSRP and W Hub on 24 April 2026 and on 12 May 2026. The AWU also contends that a request was separately made to CSRP by a division of the CEPU, namely the Electrical Trades Union (ETU), on 14 May 2026. Both CSRP and W Hub dispute that the AWU or the ETU have given any request under s 173(2A) and therefore deny that they are required by s 173(1) to issue a notice to employees who would be covered by a proposed enterprise agreement of the right to be represented by a bargaining representative.

5    On 13 May 2026 CSRP and W Hub commenced proceedings in this Court seeking declarations that they are not required to give any notice under s 173(1). The following day, the AWU lodged a notice of cross-claim, and joined the CEPU as the third cross-respondent in the proceedings. In that cross-claim the AWU also seeks declaratory relief, essentially to the effect that both CSRP and W Hub were obliged to give notice under s 173(1), as well as orders that such notices be given. The AWU also claimed that it was entitled to certain interlocutory relief, namely orders relating to the service of its notice of cross-claim, and that there be an expedited hearing of a separate question to take place on 21 May 2026. Ultimately, counsel for the AWU and the CEPU identified that the separate question that he contended ought be the subject of an expedited hearing was as follows:

Were the notices to CSRP on 12 May 2026 and 14 May 2026 requests to bargain within the meaning of ss 173(2)(aa) and 173(2A) of the Fair Work Act 2009 (Cth)?

(Separate Question)

6    For reasons that do not need to be further discussed, the AWU did not seek an expedited hearing of any separate question concerning the requests to bargain that are alleged to have been made to W Hub.

7    The AWU's application for interlocutory orders came before me on an urgent basis as duty judge. For reasons that I will now explain, I was satisfied that the orders sought with respect to service of the notice of cross-claim should be made. However, I ultimately concluded that the AWU's application for an expedited hearing of the Separate Question should be dismissed.

8    It is convenient to begin by referring to the statutory context in which these proceedings were commenced.

Relevant statutory context

9    The focus of the dispute in this matter is on s 173 of the Fair Work Act, which is in the following terms:

173  Notice of employee representational rights

Employers for single-enterprise agreements to notify each employee of representational rights

(1)     An employer that will be covered by a proposed single-enterprise agreement (other than a greenfields agreement) must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a)     will be covered by the agreement; and

(b)     is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2)     The notification time for a proposed enterprise agreement is the time when:

(a)    the employer agrees to bargain, or initiates bargaining, for the agreement; or

(aa)     the employer receives a request to bargain under subsection (2A) in relation to the agreement; or

(b)     a majority support determination in relation to the agreement comes into operation; or

(c)    a scope order in relation to the agreement comes into operation; or

(d)     a supported bargaining authorisation in relation to the agreement that specifies the employer comes into operation; or

(e)     a single interest employer authorisation in relation to the agreement that specifies the employer comes into operation.

Note: An employer that is required to give a notice under subsection (1) cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

(2A)     A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement (other than a greenfields agreement) may give the employer who will be covered by the proposed agreement a request in writing to bargain for the proposed agreement if:

(a)     the proposed agreement will replace an earlier single-enterprise agreement (the earlier agreement) that has passed its nominal expiry date; and

(b)    a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement; and

(c)     no more than 5 years have passed since the nominal expiry date; and

(d)     the proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.

When notice must be given

(3)     The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4)    An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5)     The regulations may prescribe how notices under subsection (1) may be given.

10    It may be seen that s 173(1) relevantly imposes on an employer, that will be covered by a proposed single-enterprise agreement, an obligation to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the agreement and who is employed at the 'notification time' for the agreement.

11    The 'notification time' for a proposed enterprise agreement is the time referred to in s 173(2). For the purposes of this matter, the relevant notification time is the one referred to in s 173(2)(aa), namely the time when the employer receives a request to bargain under s 173(2A) in relation to the agreement.

12    Section 173(2A) confers on a 'bargaining representative' of an employee who, relevantly, will be covered by a proposed single-enterprise agreement, the ability to give the employer who will also be covered by the proposed agreement a 'request in writing to bargain for the proposed agreement'. At least for the purposes of the AWU's interlocutory application for an expedited hearing there is no dispute that the AWU, the CEPU and the ETU are all bargaining representatives, for the purposes of s 173(2A). There is also no dispute that both the AWU and the ETU asked CSRP to bargain for a proposed enterprise agreement. There is, however, a dispute about whether there was a 'notification time' for a proposed enterprise agreement on the basis that CSRP received 'a request to bargain' under s 173(2A) for the purposes of s 173(2)(aa).

13    The ability of a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement to give a request in writing under s 173(2A) is made subject to paras (a) to (d) of s 173(2A). In the context of the AWU's interlocutory application there does not appear to be any real controversy about the matters the subject of paras (a) to (c) of s 173(2A). There is, however, a dispute between the AWU and CSRP about whether 'the proposed agreement will cover the same, or substantially the same, group of employees as the [CSRP EA]', for the purposes of s 173(2A)(d).

14    Before moving on to deal with the factual background in more detail, it is convenient at this point to note the relevance of s 173(2A)(c) in the context of the AWU's application for an expedited hearing of the Separate Question.

15    Section 173(2A)(c) provides, in effect, that a request in writing to bargain can only be made if no more than five years have passed since the 'nominal expiry date' of the earlier single-enterprise agreement. In this case, five years will have passed since the 'nominal expiry date' of the CSRP EA on 24 May 2026. It was because of that limitation that the AWU sought an order that the hearing of the Separate Question take place on an expedited basis on 21 May 2026, with a view to that question being finally determined before 24 May 2026.

16    Having provided the legal context in which the parties' dispute has arisen it is now necessary to turn to summarise the relevant factual context.

Relevant factual context

17    The following is a summary of the relevant factual context in which the AWU's application for an expedited hearing of the Separate Question fell to be considered. The summary is based on the evidence that was put before the Court for the purposes of that application and should not be understood to amount to any final findings of fact.

18    As I have already said, CSRP and certain of its employees are covered by the CSRP EA. The CSRP EA nominally expired on 25 May 2021, but as at the date of the hearing before me it remained in operation and continues to apply. W Hub and certain of its employees are covered by the W Hub EA, which nominally expired on 18 January 2025 but it also remains in operation and continues to apply.

19    On 24 April 2026, the AWU sent two letters to the Workplace Relations Manager at CSRP. Those letters purported to comprise requests under s 173(2A) to commence bargaining for an enterprise agreement to replace the CSRP EA and W Hub EA, respectively. Both letters contained the following purported requests:

The AWU requests that the company commences negotiations for an enterprise agreement to replace the Current EA that includes within its scope all workers covered by the Current EA, except for any employee engaged as a Mainline Locomotive Operator, a Yard Driver or a Shunter to the extent that there are any of these workers within the scope of the Current EA.

(emphasis added)

20    The emphasised part of the above extract is at the centre of the dispute between the parties. According to CSRP and W Hub, the emphasised part of the extract taken from the two letters demonstrates that it was not open to the AWU to make a request under s 173(2A) because the 'proposed agreement' that was the subject of the requests made by CSRP and W Hub would not cover 'the same, or substantially the same, group of employees' as the relevant earlier enterprise agreements, as required by s 173(2A)(d).

21    On 30 April 2026, a representative of CSRP contacted an AWU official to explain that CSRP and W Hub would be able to respond to the AWU's correspondence by close of business on 8 May 2026. However, as there was no such response, the AWU sent a 'notice of concerns' to both CSRP and W Hub on 8 May 2026. By that notice the AWU asserted that CSRP and W Hub had failed to issue notices under s 173(1) and had also failed to contact the AWU to arrange bargaining meetings.

22    On 8 May 2026, CSRP and W Hub then wrote to the AWU and asked it to explain the basis upon which it held the view that the proposed enterprise agreements would cover 'the same, or substantially the same, group of employees' as each current enterprise agreement as required by s 173(2A)(d). This then appears to have prompted the AWU to write to CSRP on 12 May 2026, to purport to withdraw its letter of 24 April 2026 and request to bargain for 'a proposed enterprise agreement … to replace and cover employees that are currently covered by the [CSRP EA]'.

23    Later that same day, the AWU sent a further letter to CSRP stating, in part, that:

[t]he position of the [AWU] on the scope of the [proposed replacement of the CSRP EA] is that the parties should agree that FMG Rail Operations Employees are excluded from the coverage of the [proposed replacement of the CSRP EA]. We intend to pursue that position as part of our log of claims if it is not agreed from the outset by CSRP.

(emphasis in original)

24    It appears that the AWU did not respond to the correspondence of 8 May 2026 from CSRP and W Hub, notwithstanding the fact that advice was later sought from the AWU on 13 May 2026 about whether it intended providing a response to that correspondence.

25    During the afternoon of 13 May 2026, CSRP and W Hub lodged an originating application for filing to commence these proceedings. Then, on 14 May 2026, the ETU sent a letter (that appears to have been mistakenly dated 15 May 2026) to the Workplace Relations Manager at CSRP, in which the following appeared:

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) writes pursuant to s 173(2A) of the Fair Work Act 2009 (Cth) (Act), to request to bargain for a proposed enterprise agreement (Proposed EA) to replace and cover employees that are currently covered by the [CSRP EA]. We request that CSRP commence negotiations for an enterprise agreement to replace the [CSRP EA] that includes within its scope all workers covered by the [CSRP EA].

26    There was then an exchange of correspondence between CSRP, the AWU and the ETU about the ETU's letter of 14 May 2026. In that correspondence various issues were raised about whether CSRP accepted that the ETU's letter constituted a request in writing to bargain, for the purposes of s 173(2A). However, it is unnecessary to say anything further about that correspondence at this stage.

Principles to be applied on an application for expedition

27    The relevant principles to be applied in the context of an application for an expedited hearing are well established. Essentially, the Court has a broad discretion to order expedition, which discretion is consistent with the Court's power under s 37P(2) of the Federal Court of Australia Act 1976 (Cth) to give directions about the practice and procedure to be followed in relation to proceedings, or any part of proceedings, a power that is to be exercised or carried out in the way that best promotes the overarching purpose: ss 37M(1) and 37M(3).

28    The Court will not make an order for an expedited hearing unless it is satisfied that it is in the interests of justice: Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 at [18]; Frigger v Trenfield (No 6) [2022] FCA 1233 at [31]. Factors that have been found in other cases to have been relevant to the exercise of the discretion to make an order for an expedited hearing include:

(1)    Whether a party would suffer some significant practical disadvantage, or irreparable loss, if the proceeding were not expedited (eg, loss of livelihood, business or home): Hird at [19]; Ford, In the matter of Zhong Ao Zhi Hong Investment Holding Pty Ltd (Receivers and Managers Appointed) [2021] FCA 1373 (Zhong Ao Zhi Hong Investment Holding) at [13].

(2)    Whether witness evidence is needed, and if so the availability of witnesses, or whether the questions in the proceeding can be determined on the basis of documents: Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594; (2002) 120 FCR 1 at [42]; Meadow Springs Fairway Resort Ltd (In Liq) (ACN 084 358 592) v Balanced Securities Ltd (ACN 083 514 685) [2007] FCA 1443 at [52]; Zhong Ao Zhi Hong Investment Holding at [13].

(3)    Where there will be occasioned a serious detriment to good public administration or to the interests of others not party to the appeal: Hird at [19].

(4)    The parties' own conduct, including the extent to which it has caused or contributed to delay and whether the application for expedition is opposed: Hird at [20]; Frigger v Trenfield (No 6) at [32].

(5)    The rights and interests of all litigants current and prospective, in the sense that granting of expedition in one proceeding deprives others and gives priority to that party over the many other parties who have commenced actions and complied with the timetables dictated by the Court: Hird at [21]; Sydney Trains v Australian Rail, Tram and Bus Industry Union (No 2) [2022] FCA 1264 at [13].

Why the AWU's application for an expedited hearing was dismissed

29    The AWU made the following submissions in support of its contention that the Court should exercise its discretion to expedite the hearing of the Separate Question.

30    Firstly, in circumstances in which the 'window' for a request to be given to CSRP under s 173(2A) will close on 24 May 2026, a 'prompt ruling' would, if the ruling were to be adverse to the AWU, give the AWU and the ETU the opportunity to give fresh requests to CSRP, informed by the Court's reasons.

31    Secondly, while the AWU has other means available to it to require bargaining for an enterprise agreement to commence, those means are not as 'expeditious' as giving a request under 173(2A). It was submitted that, in effect, if the AWU were to be required to employ those other means it would defeat the legislative purpose of s 173(2A), which is to provide for an expeditious means to initiate bargaining.

32    Thirdly, there has been no unexplained delay by the AWU or the ETU in giving the purported requests to CSRP, and steps were swiftly taken by the AWU to make an urgent application for an expedited hearing of the Separate Question. Further, the AWU submitted that it had narrowed the scope of the Separate Question to avoid factual disputes and the need for CSRP to marshal its own evidence.

33    Fourthly, it is in the interests of all parties to these proceedings to understand the 'lawful state of affairs' and, in particular, to know whether any industrial action that may now be taken is 'protected industrial action' for the purposes of the Fair Work Act.

34    Fifthly, although the Separate Question does not concern the question of whether any requests were given to W Hub by the AWU, for the purposes of s 173(2A), there is no realistic risk that the Court would make inconsistent findings.

35    Finally, depending on the scope of any discovery sought by CSRP, discovery could be given by the AWU in very short order. In that regard, counsel for the AWU submitted that discovery could be given by the end of 19 May 2026, which it was said would then give CSRP just over 24 hours to digest that discovery before undertaking any cross-examination of the AWU's witnesses.

36    As I have already noted, the CSRP EA had a nominal expiry date of 25 May 2021. The option of initiating bargaining for an enterprise agreement by making a request in writing under s 173(2A) was introduced on 7 December 2022 by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). In those circumstances, the AWU and the ETU has, for over three years, had the opportunity to give a request to CSRP to initiate bargaining for a proposed enterprise agreement to replace the CSRP EA. However, that opportunity was not taken, in the case of the AWU, until 24 April 2026, and, in the case of the ETU, until 14 May 2026.

37    Notwithstanding that background, the AWU's contention was that the Separate Question must be heard and determined on an expedited basis, and certainly by no later than 24 May 2026, when the time allowed for giving a request to CSRP under s 173(2A) will expire by operation of s 173(2A)(c). More specifically, the contention was that if neither of the purported requests made by the AWU on 24 April 2026 or 12 May 2026, or the purported request made by the ETU on 14 May 2026, are requests to bargain for a proposed enterprise agreement for the purposes of s 173(2A) then 'there will be no time left for the AWU to make a new request that does comply with s 173(2A)'. The AWU submitted that in those circumstances 'the AWU's rights under s 173(2A) will have been lost due to the effluxion of time'.

38    In my view, the reason for urgency asserted by the AWU was lacking in substance. As was confirmed by the submissions that were made on behalf of the AWU, it was contended that in circumstances in which the AWU and the ETU both decided to wait until shortly before the last date for giving a request to CSRP under s 173(2A), the Court should nevertheless hear and determine the Separate Question on a drastically accelerated basis. It was submitted that this step should be taken because, if the Court's answer to that question is ultimately adverse to the interests of the AWU, there will then be sufficient time remaining for further requests to be given to CSRP under s 173(2A), informed by the Court's reasons. The AWU therefore, in effect, sought an urgent legal opinion from the Court concerning the veracity of requests it and the ETU purport to have already given to CSRP under s 173(2A), leaving enough time for decisions to be made about whether any further requests should be given to CSRP, and the form those requests should take. That is very clearly not a sufficient reason to exercise the Court's discretion to expedite the hearing and determination of the Separate Question. That is particularly the case when there is no reason why the AWU or the ETU could not give to CSRP such further requests to bargain under s 173(2A) as they may now consider to be necessary, and to do so before 24 May 2026.

39    I would have refused the AWU's application for an expedited hearing of the Separate Question on this basis alone. However, there were additional reasons why I concluded that the Court should not exercise its discretion to expedite the hearing and determination of the Separate Question.

40    Counsel for the AWU and the CEPU took great pains to persuade the Court that the Separate Question could be determined on the basis of a very confined body of evidence together with legal submissions from the parties. Further, although counsel conceded that CSRP might seek discovery, he submitted that such discovery could be provided and with adequate time allowed for CSRP to prepare for an expedited hearing of the Separate Question on 21 May 2026. In this respect, counsel argued that it was in the interests of the AWU and the CEPU (and therefore the ETU) to cooperate in a timely way with appropriate requests for discovery. Counsel also submitted that the AWU and the CEPU anticipated that a hearing could be 'comfortably' concluded within one day, even if there was to be cross-examination of the two witnesses on which the AWU and CEPU intended to rely.

41    However, I did not share counsel's optimism. I formed the view that if the Separate Question were to be heard and determined at the breakneck speed for which the AWU advocated, there was a real risk that it would occasion irremediable prejudice to CSRP. In that regard, it is only necessary to refer to one of the issues that would need to be determined to answer the Separate Question.

42    CSRP submitted that a matter that is in issue between the parties is whether the requests that were purportedly given by the AWU on 24 April 2026 and then on 12 May 2026 were 'bona fides' requests. It was further submitted that there is likely to be an issue about the 'bona fides' of the purported request given by the ETU on 14 May 2026. As I understand it, CSRP intends putting in issue the question of whether those purported requests were 'genuine' requests to bargain for a proposed agreement, on the basis of a contention that a 'genuine' request is required on the proper construction of s 173(2A). Further, CSRP intends, in effect, arguing that, for the purposes of s 173(2A), a request to bargain for a 'proposed agreement' must be in relation to an agreement the initiating party 'wants to negotiate' (Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 173; (2004) 138 IR 362 at [56]), and that the purported requests do not satisfy that requirement.

43    In support of CSRP's contention that these are substantial issues that would need to be determined by the Court to answer the Separate Question, reference was made to the letter I have already mentioned at [23] of these reasons. The Court was also referred to the timing of the ETU's purported request on 14 May 2026, and to the fact that it was given to CSRP after issues were raised about the genuineness of the requests given by the AWU and after proceedings were commenced by CSRP. As I understood it, CSRP intends arguing that these matters indicate that the purported requests to bargain that were made by the AWU and by the ETU were not 'requests' given to CSRP for the purposes of s 173(2A).

44    It was unnecessary, and inappropriate, for me to reach any concluded views about the merits of CSRP's contentions. Nevertheless, I formed the preliminary view that those contentions were at least arguable. I also formed the view that based on the materials before me, there was a palpable risk that if the hearing of the Separate Question were to be expedited, CSRP would be denied a reasonable opportunity to properly present its case in support of those contentions. In that regard I accepted CSRP's submission that the resolution of the question of whether the AWU and the ETU had given requests to the CSRP, for the purposes of s 173(2A), could well depend upon documents in the possession of the AWU and the ETU, as well as on the cross-examination of the AWU's witnesses. I also accepted CSRP's further submission that to fairly present its case on those issues it required a reasonable opportunity to:

(1)    formulate categories of discoverable documents;

(2)    prepare and serve notices to produce and/or subpoenas;

(3)    inspect any documents produced in answer to a notice to produce, order for discovery or subpoena; and

(4)    prepare for cross-examination,

and that the opportunity to properly undertake those activities would be denied if the Separate Question were to be heard and determined on the expedited basis contended for by the AWU.

45    In deciding not to expedite the hearing and determination of the Separate Question I also took into account the fact that, apart from the contention that an expedited hearing was required in order to preserve the opportunity to give CSRP a fresh notice under s 173(2A) if the Court were to answer the Separate Question in a way that was adverse to the AWU's interests, the AWU did not adduce any evidence of prejudice that might otherwise justify an expedited hearing of the Separate Question. Importantly, there was no evidence that any of the employees covered by the CSRP EA would be prejudiced because the AWU or the ETU will be unable to give further requests to CSRP under s 173(2A) after 24 May 2026.

46    I also took into account the fact that if the Court were to ultimately conclude at a hearing conducted other than on an expedited basis that none of the purported requests on which the AWU presently wishes to rely were given to CSRP for the purposes of s 173(2A), a bargaining representative might still initiate bargaining for a new enterprise agreement with CSRP by obtaining a majority support determination under ss 236 and 237 of the Fair Work Act. Although more would need to be done to obtain such a determination, when compared to what is required to initiate a bargaining process under ss 173(1) and 173(2A), it does not follow that this would defeat the legislative purpose of s 173(2A), as was submitted on behalf of the AWU and the CEPU. Based on the evidence before the Court, the reason why obtaining a majority support determination may ultimately be the only option available to the AWU and the ETU is because those organisations effectively decided to take the risk that disputes with CSRP might arise as to whether a request to bargain had in fact been given to CSRP under s 173(2A), which disputes could not be resolved before 24 May 2026. That outcome would not represent a defeat of the legislative purpose of s 173 but would instead be the consequence of the way in which the relevant legislative scheme was intended to operate.

47    CSRP also submitted, and I accepted, that the Court should not 'reward the AWU's self-interested delay'. According to the CSRP, the AWU has had since December 2022 to make a request to bargain for a proposed enterprise agreement but did not take that opportunity until the five-year limit in s 173(2A)(c) had almost expired.

48    According to the evidence of Shane Roulstone, the National Organising Director employed by the AWU, he decided to commence bargaining with CSRP for a proposed enterprise agreement towards the end of April 2026. He made that decision so that he could try to bargain for new agreements to replace the CSRP EA and the W Hub EA, as well as another enterprise agreement, at the same time. According to Mr Roulstone, there were advantages in aligning the timing of the bargaining in this way, including because of the efficiency of bargaining together. Mr Roulstone also gave evidence that the AWU had limited resources in the Pilbara region.

49    Ultimately, however, the initial request to bargain was, according to Mr Roulstone, given to CSRP on 24 April 2026 'because that would still leave a month for any arguments about the request if there were going to be any'.

50    Insofar as the CEPU is concerned, reliance is placed on the evidence of Brant Softley, who is employed as a Lead Organiser by the ETU. According to Mr Softley, the team he leads is small, but it is required to cover a significant number of members employed throughout the Pilbara. He says that site visits take time given the large distances that must be covered. He also says that there are other challenges relating to the ETU's ability to gain access to members in circumstances in which available visiting times are limited by the members' fly-in and fly-out arrangements.

51    In his affidavit affirmed on 18 May 2026, Mr Softley explained as follows:

The team I lead is a small one. The number of ETU organisers in the region at any one point has traditionally been two and I was one of them. The other position was shared on two weeks on two weeks off basis. We are no different to Fortescue in that you need people to get the job done.

The ETU hadn't previously requested Fortescue (meaning here CSRP) to commence bargaining for a new enterprise agreement because in my opinion you need officials and organisers to have the capacity to put boots on the ground to organise effectively. I didn't want to bite off more than we could chew. Doing so requires substantial work and if you don't get it right it disappoints members.

The ETU is growing its membership, and we are investing in putting more people on. A new organiser is coming on board. That will help and that organiser is going to have Fortescue squarely in his patch.

The AWU requesting CSRP to commence bargaining took it out of the ETU's hands. But, now that we have our own resource coming in, and they are going to have Fortescue in their patch, the ETU is ready to push on with bargaining now and has made its own request to commence bargaining.

52    The evidence of both Mr Roulstone and Mr Softley does, to some extent, explain why the AWU and the ETU did not give an earlier request to CSRP to bargain for a proposed enterprise agreement. However, what is plain is that the AWU decided to take a risk that a month would be all that would be required to resolve any potential arguments with CSRP about the request that it purported to make under s 173(2A) on 24 April 2026. Further, the evidence of Mr Softley establishes that the ETU only made the decision to give a request to CSRP under s 173(2A) after the AWU request 'took it out of the ETU's hands'. Given the timing of the ETU's purported request on 14 May 2026, I infer that the 'AWU request' to which Mr Softley referred was the request that was purportedly made by the AWU on 12 May 2026, less than two weeks before the last date on which such a notice may be given.

53    Accordingly, the situation in which the AWU and the ETU have found themselves is, to a significant extent, of their own making. This was a further significant factor that, in my view, weighed against granting an expedited hearing of the Separate Question.

Conclusion

54    Ultimately, after weighing all the factors to which I have referred, and taking into account the parties' submissions, I determined that it was not in the interests of justice that the Court exercise its discretion to order that the Separate Question be heard and determined on an expedited basis before 24 May 2026.

55    In those circumstances it was unnecessary to consider whether, as was submitted by CSRP, the Court should not determine the Separate Question, whether on an expedited basis or otherwise, because there were risks of inconsistent findings if that question were to be determined separately from questions relating to the purported requests to bargain given to W Hub.

Other interlocutory orders sought by the AWU

56    As there was no opposition to the other interlocutory orders sought by the AWU concerning the service of the notice of cross-claim, and because they were otherwise appropriate, those orders were made at the conclusion of the hearing of the AWU's application for an expedited hearing.

Associate:

Dated:    25 May 2026

SCHEDULE OF PARTIES