CSRP Pty Ltd v Australian Workers' Union

This Federal Court matter came out of a practical enterprise bargaining fight about how bargaining starts, not a final hearing about the terms of a new agreement. CSRP Pty Ltd and W Hub Pty Ltd each had enterprise agreements that had passed their nominal expiry dates but still continued to apply. The Australian Workers' Union said it had sent valid written requests to bargain for replacement agreements. The employers said those requests did not satisfy the Fair Work Act and therefore did not trigger any obligation to issue notices of employee representational rights.

The dispute became urgent because of the five-year limit built into s 173(2A)(c). The Court said that, for CSRP, five years since the nominal expiry date of the earlier agreement would pass on 24 May 2026. The AWU wanted the Court to quickly determine a separate question about whether notices sent to CSRP on 12 May 2026 and 14 May 2026 counted as requests to bargain under the Act. The union's practical objective was clear from the reasons: if the Court answered that question against it, the union wanted enough time left to send a fresh request before the five-year window closed.

The sequence of correspondence mattered. On 24 April 2026, the AWU sent letters to CSRP and W Hub that purported to be requests under s 173(2A). Each letter asked the company to commence negotiations for a replacement enterprise agreement that would include all workers covered by the current agreement except certain identified rail roles. That carve-out was not a side issue. It became the centre of the employers' argument that the statutory requirements were not met.

On 30 April 2026, a representative of CSRP told the AWU that CSRP and W Hub would be able to respond by close of business on 8 May 2026. When no response was received by then, the AWU sent a notice of concerns on 8 May 2026 asserting that the employers had failed to issue notices under s 173(1) and had failed to contact the union to arrange bargaining meetings. Also on 8 May 2026, CSRP and W Hub wrote to the AWU asking it to explain how the proposed replacement agreements would cover the same, or substantially the same, group of employees as the current agreements, as required by s 173(2A)(d).

That appears to have prompted the AWU to send a further letter to CSRP on 12 May 2026. In that letter, the AWU purported to withdraw its 24 April 2026 letter and instead requested bargaining for a proposed enterprise agreement to replace and cover employees currently covered by the CSRP agreement. But later that same day, the AWU also wrote that its position on scope was that FMG Rail Operations employees should be excluded from the coverage of the proposed replacement agreement, and that it intended to pursue that position as part of its log of claims if it was not agreed from the outset.

On 13 May 2026, CSRP and W Hub commenced proceedings in the Federal Court seeking declarations that they were not required to give notices under s 173(1). On 14 May 2026, after those proceedings had been commenced, the ETU sent its own letter to CSRP requesting bargaining for a proposed enterprise agreement to replace and cover employees currently covered by the CSRP agreement. There was then further correspondence about whether the ETU's letter constituted a request in writing to bargain for the purposes of s 173(2A).

The immediate issue was narrow but commercially important. The AWU sought urgent interlocutory orders, including substituted service and an expedited hearing of a separate question. The separate question was whether the notices to CSRP on 12 May 2026 and 14 May 2026 were requests to bargain within the meaning of ss 173(2)(aa) and 173(2A) of the Fair Work Act.

That question sat within a broader dispute about whether CSRP and W Hub were required to issue notices of employee representational rights under s 173(1). Under s 173(1), an employer that will be covered by a proposed single-enterprise agreement must take all reasonable steps to notify each employee who will be covered by the agreement, and who is employed at the notification time, of the right to be represented by a bargaining representative. For this case, the relevant notification time was the time when the employer receives a request to bargain under s 173(2A).

The Court explained that there was no dispute, at least for the purposes of the interlocutory application, that the AWU, CEPU and ETU were bargaining representatives and that both the AWU and ETU had asked CSRP to bargain. The dispute was whether there had been a request to bargain under s 173(2A) for the purposes of creating a notification time. One identified issue was whether the proposed agreement would cover the same, or substantially the same, group of employees as the earlier agreement, as required by s 173(2A)(d).

The Court also recorded that CSRP intended to argue something more. It said the purported requests were not genuine or bona fide requests to bargain and that, on the proper construction of s 173(2A), a request must be a genuine request to bargain for a proposed agreement that the initiating party actually wants to negotiate. The judge did not decide that argument at this stage, but treated it as at least arguable for the purpose of deciding whether the matter should be rushed to hearing.

The Court made the service-related orders sought by the AWU but refused the request for an expedited hearing of the separate question. Specifically, the Court shortened time for service of the interlocutory application and allowed service by email on the solicitors for the applicants and on the CEPU. But the respondent's claim for interlocutory relief was otherwise dismissed.

The judge applied the usual principles for expedition. The Court has a broad discretion to order expedition, but only where doing so is in the interests of justice. Relevant factors include whether a party would suffer significant practical disadvantage or irreparable loss without expedition, whether the matter can be determined mainly on documents or needs witness evidence, whether expedition would prejudice others, the parties' own conduct and delay, and the effect of giving one matter priority over other litigants waiting for court time.

The Court held that the AWU's asserted urgency lacked substance. The reasons note that the s 173(2A) pathway had been available for over three years after its introduction on 7 December 2022, yet the AWU did not send its first request to CSRP until 24 April 2026 and the ETU did not send its request until 14 May 2026. The Court said it was not a sufficient basis for expedition that the unions had waited until shortly before the last date for giving a request and now wanted a prompt ruling so they could, if unsuccessful, send fresh requests informed by the Court's reasons. The judge described that as effectively seeking an urgent legal opinion from the Court.

The Court also accepted that a rushed hearing could cause irremediable prejudice to CSRP. The judge was not persuaded that the separate question could safely be heard at the speed proposed. CSRP had raised arguable issues about whether the purported requests were genuine requests to bargain, and the Court accepted that resolving those issues could depend on documents in the possession of the AWU and ETU as well as cross-examination of witnesses. The Court accepted that CSRP needed a reasonable opportunity to formulate categories of discoverable documents, prepare and serve notices to produce or subpoenas, inspect documents produced, and prepare for cross-examination. That opportunity would be denied if the matter were heard on the accelerated timetable sought by the AWU.

The Court also noted that the AWU had not adduced evidence of other prejudice that might justify expedition. Importantly, there was no evidence that employees covered by the CSRP agreement would be prejudiced because the AWU or ETU would be unable to give further requests after 24 May 2026. The Court further noted that, if the s 173(2A) route ultimately failed, a bargaining representative might still initiate bargaining by obtaining a majority support determination under ss 236 and 237.

For employers, this case is a reminder that bargaining disputes often turn on documents, timing and coverage, not just broad industrial positions. A request to bargain under s 173(2A) can be highly consequential because it may trigger the obligation to issue notices of employee representational rights. But whether that trigger has occurred may depend on the exact wording of the request and whether the proposed replacement agreement really covers the same or substantially the same group of employees as the earlier agreement.

The case also shows that later correspondence can complicate, rather than cure, an earlier problem. Here, the AWU sent a later letter purporting to withdraw and replace its earlier request, but on the same day also stated that it intended to pursue exclusion of a group of employees from the replacement agreement's coverage. That sequence gave the employer material to argue that there were substantial issues about what was really being requested and whether the request was genuine.

Another practical point is that courts do not automatically reward last-minute urgency. If a party waits until close to a statutory deadline and then asks for a breakneck hearing timetable, the Court may refuse, especially where the other side says it needs discovery, document inspection and time to prepare cross-examination. Businesses should therefore identify the nominal expiry date of the current agreement early, calculate the five-year period carefully, and assess any bargaining request promptly.

Finally, this decision should not be read as saying that the unions were wrong on the merits. The judge expressly said the factual summary was based on the interlocutory record and was not a final finding of fact. The ruling is best understood as a case management decision that left the substantive dispute to be determined later, if necessary, on a proper evidentiary footing.

The Court's orders were made on 18 May 2026 and the reasons were published on 25 May 2026. The proceeding was in the Federal Court of Australia, Western Australia Registry, before Vandongen J. The decision reported at [2026] FCA 644 is an interlocutory ruling only. It records the procedural posture, the statutory context, the correspondence sequence and the reasons for refusing expedition, but it does not finally determine the underlying bargaining dispute.

The Court also made clear that its factual summary was based on the evidence put before it for the urgent application and should not be understood as final findings of fact. That matters for business readers. If you are looking for a final answer on whether the requests were valid, whether notices were required, or whether any industrial action was protected, this decision does not provide that final answer.

Does a request to bargain have to be genuine? The Court did not finally decide that issue here. However, it recorded that CSRP intended to argue that a request under s 173(2A) must be a genuine request to bargain for a proposed agreement that the initiating party wants to negotiate, and the judge considered that contention at least arguable for the purpose of deciding whether expedition should be refused.

Can a later letter fix an earlier defective request? This ruling does not finally answer that. It does show, though, that later letters may themselves become part of the dispute, especially if they appear inconsistent with the coverage position said to support the request.

What if the five-year window is about to close? The Court's approach suggests that parties should not expect an urgent hearing simply because the deadline is near. The five-year limit should be treated as a planning point, not a reason to assume the Court will compress ordinary procedural fairness.

Is the employer safe to ignore a disputed request? No. A disputed request can quickly lead to declarations, cross-claims and urgent interlocutory applications. The safer course is to assess the request promptly, document the reasons for any position taken, and obtain advice on whether a notification time has arisen.