Could poor documentation jeopardise your plans for a smooth Enterprise Agreement process? When it comes to enterprise bargaining, one unclear commitment could derail the entire process.
A recent Full Bench decision by the Fair Work Commission (FWC) has clarified what counts as an “agreement in writing” when initiating bargaining for a single-enterprise agreement. In Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shire Council and Ararat Rural City Council [2024], the FWC ruled that a vague willingness to negotiate does not constitute a binding agreement.
This distinction is critical for employers, as failure to meet procedural requirements could leave open the door for the FWC to make alternative bargaining orders if sought by another employee organisation (as was the case here).
Alternatively, employers may take some comfort in knowing that they won’t be bound to commence bargaining at the request of an employee organisation unless the requirement for writing is satisfied.
Case Background
The Australian Municipal, Administrative, Clerical and Services Union (ASU) applied for a single-interest employer authorisation to allow multi-employer bargaining between Central Goldfields Shire Council (Goldfields Council) and Ararat Rural City Council.
While Ararat Council accepted the proposal, Goldfields Council opposed it, arguing that it had already agreed in writing with the Australian Nurses and Midwives’ Federation (ANMF) to bargain for a single-enterprise agreement. The council also claimed that multi-employer bargaining would be against public interest and could disrupt enterprise-level negotiations.
The ASU filed its application after the expiry of enterprise agreements for both councils, making it a time-sensitive issue.
Why the Order Was Granted
The FWC dismissed Goldfields Council’s objections and made orders for the single-interest employer authorisation, ruling that the Goldfield Counsil’s so-called agreement in writing did not meet the legal standard.
> Written Agreement to Bargain Must Be Explicit and Unambiguous
Goldfields Council presented an email from the ANMF expressing willingness to meet, along with a preamble in the ANMF’s log of claims, as evidence of a written agreement under section 249(1D)(b) of the Fair Work Act.
However, the FWC rejected this argument, finding that a general willingness to discuss bargaining does not equate to a binding written agreement. The commission emphasised that the ANMF’s communication lacked specificity and was conditional on future developments. To meet the legal threshold, a written agreement must be clear, final, and reference a specific single-enterprise agreement.
Intentions and preliminary discussions are not enough—formal commitments must be properly documented.
> Public Interest Concerns Dismissed
Goldfields Council also argued that allowing multi-employer bargaining would undermine enterprise-level negotiations and create workplace tensions.
The FWC dismissed this claim, concluding that:
- The Fair Work Act permits multi-employer bargaining when specific conditions are met.
- The councils had clear common interests, supported by similar regulatory frameworks and service delivery models.
- Public interest concerns must be proven, but Goldfields Council did not provide sufficient evidence.
Multi-employer bargaining is legally valid when parties demonstrate comparable operations and interests. Employers seeking to challenge similar applications must provide concrete evidence, not just general concerns that multi-employer bargaining can proceed when parties demonstrate comparable operations and shared interests.
> A Compliant and Transparent Voting Process
Even when bargaining procedures are correctly followed, the enterprise agreement vote itself must be conducted properly. If the voting process is not confidential, independent, and compliant with FWC standards, the agreement can still be rejected.
To ensure a legally valid enterprise agreement vote, employers should:
- Use independent balloting services to guarantee fairness and neutrality.
- Conduct votes through secure, confidential methods to prevent undue influence.
- Keep an accurate record of voter participation to avoid disputes over eligibility.
Engaging a trusted third-party ballot provider like IR BLOTS ensures that the voting process meets all legal and procedural requirements, reducing the risk of rejection.
Ensure compliance with secure, anonymous, and efficient electronic voting with IR BLOTS—trusted by Australian businesses for workplace ballots. Contact us today.
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