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Three employers have failed to convince the Fair Work Commission they shouldn't have to participate in bargaining for a proposed multi-enterprise agreement, in the first test case of the Fair Work Act's provisions.

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) lodged its application in December last year, seeking a single interest employer authorisation for four mining employers, trading as Peabody, Ulan, Whitehaven and Delta Coal.

Late last month, a full bench – Deputy Presidents Judith Wright and Peter Hampton, and Commissioner Alana Matheson – made the authorisation in respect of the first three employers...