A proposed multi-enterprise agreement for the NSW and ACT electrical contracting industry included a term requiring employers to destroy surveillance material handed to them by site owners or security contractors, and barring its use in disciplinary processes. That term was among the reasons the Fair Work Commission refused twelve electrical contractors authorisation to bargain together.
Commissioner McKinnon dismissed the application on 24 September 2026. The twelve employers, the first named of which is Fredon Industries Pty Ltd, applied on 5 June 2026 under s 248(1)(a) of the Fair Work Act 2009 for a single interest employer authorisation, an order allowing separate employers to bargain together for one multi-enterprise agreement. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia consented to the application. The National Electrical Contractors Association objected.
At a glance
- Parties: Fredon Industries Pty Ltd and eleven other electrical contracting employers, with the CEPU consenting and NECA objecting
- Citation: [2026] FWC 3685 (B2026/617), Commissioner McKinnon
- Section: s 248(1)(a) application; requirements in s 249, including the public interest requirement in s 249(3)(b)
- Outcome: Application dismissed on 24 September 2026
- Who it affects: Employers and electrical workers in the NSW and ACT electrical contracting industry
Under s 249, the Commission must make an authorisation if satisfied of each listed matter. The Commissioner was satisfied that at least some employees would be represented by the CEPU, that the parties had been able to put their views at a hearing in Sydney on 28 July 2026, and that no person had coerced the employers into agreeing to bargain together. She was not satisfied that making the authorisation would not be contrary to the public interest. Because the employers made the application rather than the union, no statutory presumption applied in favour of that requirement being met.
that the application being made by consent was itself an indicator that the authorisation was not contrary to the public interest, that it would make wage and allowance levels more predictable and tendering more consistent, that it would promote “competition on efficiency, capability, safety performance and productivity rather than on labour conditions”, and that it would streamline bargaining by “replacing duplicative single enterprise rounds with one structured process”.
that the authorisation was aimed less at the applicants than at other electrical contracting businesses, who “realistically and practically will not be able to resist any application to add them to the authorisation”, and that it had an anti-competitive purpose, because it was “not in the public interest for a small number of employers to set the industry standard to the detriment of hundreds of other businesses”.
that the practice of pattern bargaining in the industry “tends against a finding that the authorisation is not contrary to the public interest, including because one purpose of the authorisation is to restrict competition in the electrical services market”, and that the available information raised concerns about “less competition, lower productivity, and one that undermines efforts to ensure the safety, integrity and security of workplaces in the electrical contracting and construction industries”.
A clause that would have required material to be destroyed
Clause 11(d) of the proposed agreement sat within a broader surveillance clause that the Commissioner said was largely ordinary and aimed at the reasonable protection of employee information. Under clause 11(d), information reaching an employer as a result of surveillance carried out by anyone other than the company had to be destroyed, could not be passed on to others, and could not be relied on for performance management, counselling or disciplinary action, including dismissal.
The decision used the example of a site owner or a security contractor giving one of the employers images or camera footage of an employee that appeared to show a serious safety incident, alleged sexual harassment or a crime. On its face, the Commissioner said, the term would require the employer to destroy that evidence, deny its existence and keep it out of any investigation. That result, she found, would not be “consistent with prevailing community standards”, and the requirement was likely to undermine efforts in the construction and electrical contracting industries to “provide a safe workplace, uphold integrity and foster a sense of security for employees and others while they are at work”.
The one-break day works out to ten minutes less work a day
The Commissioner assessed the proposed agreement against the object in s 171(a) of the Act, which refers to collective bargaining, particularly at the enterprise level, for agreements that deliver productivity benefits. The union did not identify any likely productivity benefits from the proposed agreement, though it pointed to minimum quotas for the employment of women and to ratios and related provisions aimed at employing apprentices to address skills shortages.
Most of the proposed terms were found to be either neutral on productivity or to tend against it, including restrictions on supplementary labour, a prohibition on casual, temporary, fixed or maximum term and project-based employment, restrictions on foreign labour, rostered days off fixed to an annual industry calendar, and an increase in annual leave to five weeks a year, six weeks for continuous shiftworkers.
One term claimed a productivity gain from converting the daily 30-minute unpaid meal break into a paid break, with employees finishing 30 minutes earlier without loss of pay. Commissioner McKinnon found “the productivity benefit of the one break day is illusory because it is offset by the loss of 30 minutes’ work by reason of an earlier finishing time”. The net effect, she said, was 10 minutes’ less work per day.
A further term provided an hourly “productivity allowance” of between $1.05 and $4.20 in 2026 for employees who undertook annual training on an agreement interpretation course, on the premise that a better understanding of the agreement would mean fewer disputes. NECA gave evidence that its members doubted that premise and feared the allowance could instead encourage division and disputation. The Commissioner said each contention was arguable, and that improved knowledge “is no guarantee of peace”.
NECA said employers were coerced; the Commissioner was not persuaded
NECA argued that the employers’ abrupt shift in position on multi-employer bargaining, which it described as unexplained, must have been affected by coercion or the threat of coercion. It relied on the experience of other employers in the industry and on witnesses it said were unwilling to be identified for fear of retribution.
The Commissioner traced the history instead to a compromise on scope. The CEPU had applied on 16 December 2025 with the consent of eleven employers, and a competing employer application with narrower scope was made on 19 December 2025. In May 2026 the parties began discussions on narrowing their dispute, and in early June 2026 they agreed to abandon both applications and lodge this one, an agreement later formalised in a Deed of Agreement.
NECA also filed photographic evidence of an inflatable grub used at a CEPU bargaining rally outside the headquarters of Stowe Australia, bearing wording that played on the name of the company’s chief executive. The Commissioner found the behaviour in targeting him in connection with his role in bargaining was “plainly intimidatory” and rejected entirely the CEPU’s description of the conduct as simply “colourful”. She held the evidence was not relevant to the coercion question because Stowe was not one of the twelve applicant employers, and found, on the basis of the Deed of Agreement, that each employer had chosen to bargain together with informed consent.
Comparability concerns about two of the twelve
The presumption in s 249(3AB) that employers have clearly identifiable common interests applied to all but two of the applicants, each of which had fewer than 50 employees. Goldline Industries Pty Ltd had approximately 47 employees at the time of the application and Carringtons Electrical approximately 18. The Commissioner was satisfied on balance that all twelve had clearly identifiable common interests.
Because s 249(3) was not met on the public interest ground, it was unnecessary to decide whether the employers’ operations and business activities were reasonably comparable. Had it been necessary, the Commissioner said she would have held concerns about Goldline and would not have been satisfied that Carringtons was reasonably comparable to the others, whose workforces ranged from more than 50 to approximately 380 employees.
Electrical services sits outside the construction restriction
Section 249A limits the making of a single interest authorisation where the proposed agreement would cover employees in relation to general building and construction work. The Commissioner found the restriction did not apply, because general building and construction work as defined in s 12 and s 23B(1) expressly excludes work in the industry of electrical services within the meaning of the Electrical, Electronic and Communications Contracting Award 2020.
On that finding, s 249A did not of itself prevent an authorisation covering electrical services employees. All twelve employers are covered by the Electrical Award and by versions of the CEPU’s NSW/ACT Construction Union Agreement 2024-25 that the decision describes as being “in nearly identical terms”.
Source: [2026] FWC 3685
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