The Fair Work Commission has dismissed a majority support determination (MSD) application brought by the CEPU for a group of BHP rail signalling employees, finding that the union did not prove the integrity of the online petition it relied on to demonstrate majority support.
The case, Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (B2025/1608), was decided by Deputy President O’Keeffe on 8 April 2026.
Background
The CEPU sought to require BHP WAIO Pty Ltd and BHP Iron Ore Pty Ltd to bargain for an enterprise agreement covering employees responsible for maintaining signalling infrastructure on BHP’s rail network, including signal equipment rooms, level crossings, points and track circuits.
A majority support determination allows the Commission to require an employer to bargain where a majority of the relevant employees want bargaining to occur.
To demonstrate employee support, the CEPU relied primarily on an online petition conducted between 25 July and 26 August 2025. The union said 32 employees completed the petition and supported bargaining. After the employee list was reviewed, the Commission treated the result as 29 supporting employees out of a cohort of 50, appearing to show 58 per cent support.
BHP opposed the application, arguing that:
- the proposed group of employees had not been fairly chosen;
- the online petition could not safely establish majority support; and
- employees may not have properly understood the scope of the proposed agreement.
The Commission’s Findings
The Commission rejected BHP’s argument regarding the scope of the proposed agreement. Deputy President O’Keeffe accepted that the relevant employees understood the CEPU was seeking an enterprise agreement for signal technicians and related employees. Although the wording of the union’s communications was not perfect, this was not enough to invalidate the application.
However, the application ultimately failed because of concerns regarding the reliability of the online petition.
The Commission found that the CEPU had not provided sufficient evidence about how the petition data was collected, stored, protected or converted into the spreadsheet relied on during the proceedings.
In particular, there was no clear evidence regarding:
- the online platform used;
- who had access to the data;
- whether the spreadsheet could be edited;
- whether changes had been made; or
- how the identity of each participant was verified.
Deputy President O’Keeffe stressed that the issue was not whether the CEPU had acted improperly. Rather, the problem was that the Commission could not be satisfied that the petition evidence was reliable enough to prove majority support.
Because the CEPU bore the burden of proving that a majority of employees wanted to bargain, the lack of evidence regarding data integrity proved fatal to the application.
Why This Decision Matters
The Commission made clear that online petitions are not automatically unacceptable. Digital surveys and petitions may be appropriate, particularly for remote workforces. However, parties relying on them must be able to demonstrate that the process is secure, accurate and trustworthy.
The decision highlights that, in majority support matters, numbers alone may not be enough. Unions and other applicants must also be able to prove that the method used to collect those numbers is reliable.
Key Takeaway
This case is an important reminder that process integrity matters.
Where online petitions or digital workforce processes are used to establish employee support, organisations should ensure there are appropriate safeguards, verification processes and audit trails in place to withstand scrutiny if challenged.
IRBLOTS helps employers with secure and independently managed workforce voting processes designed to improve reliability, reduce disputes and support defensible outcomes.
If you would like to discuss your current processes or upcoming workforce ballots, feel free to contact us.
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