Does Bargaining End Once Employees Approve an Agreement? The phrase “Employees … not unions … Vote!” is a well-known saying in enterprise bargaining for a reason—because it’s true.
A recent Full Federal Court decision has reinforced this fundamental principle, confirming that once an enterprise agreement is approved by employees, bargaining is over.
In Australian Rail Track Corporation Limited v Australian Rail, Tram and Bus Industry Union [2024], the Court ruled that once a majority of employees vote ‘YES’ on an enterprise agreement, the Fair Work Commission (FWC) no longer has jurisdiction to make a workplace determination.
For employers, this decision provides much-needed certainty: once employees have approved an agreement, unresolved bargaining issues cannot be reintroduced through the FWC.
Case Overview
The Australian Rail Track Corporation (ARTC) began negotiating a new enterprise agreement in December 2022, engaging with multiple unions, including the Australian Rail, Tram and Bus Industry Union (RTBU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU).
Following months of negotiations and industrial action—which was ultimately halted by an FWC order—ARTC decided to put the proposed enterprise agreement to a vote. A majority of employees voted ‘YES’, signaling approval.
However, before the FWC formally approved the agreement, the unions sought to extend bargaining by applying for a workplace determination under section 266(1)(c) of the Fair Work Act 2009 (Cth). Their argument? That certain issues remained unresolved.
ARTC challenged the union’s move, arguing that once the agreement was approved by employees, bargaining had ended, making the application invalid.
When Does Bargaining Officially End?
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.
FWC Decision: Bargaining May Continue
Initially, the FWC Full Bench ruled that it still had jurisdiction to make a workplace determination under section 266(1)(c), even after the agreement had been approved. This suggested that unions could continue pushing for changes post-approval, potentially weakening the finality of enterprise agreements.
Full Federal Court Decision: Bargaining Ends with a Majority Vote
The Full Federal Court overturned the FWC’s decision, confirming that bargaining ends once an enterprise agreement is approved by employees.
The ruling reinforced two critical points:
- Section 266(1)(c) does not allow a workplace determination once an agreement is approved because bargaining representatives lose their role once the agreement is finalised.
- Allowing post-approval workplace determinations would undermine enterprise bargaining, which prioritises agreements made between employees and employers—not continuous renegotiation by bargaining representatives.
This ruling upholds the integrity of the enterprise bargaining process, ensuring that once an agreement has majority employee support, it cannot be revisited unless challenged on legal grounds.
Key Takeaways for Employers
1. Bargaining Ends Once Employees Approve the Agreement
Once employees vote in favor of an enterprise agreement, bargaining representatives no longer have a role, and unresolved issues cannot be revisited through a workplace determination. For employers, this means that getting the agreement to a vote as soon as there is strong employee support is key. Employers should:
- Be prepared to campaign for a ‘YES’ vote and counter any union push for a ‘NO’ vote.
- Recognise that unions may still challenge the agreement on other grounds (such as BOOT compliance or genuine agreement concerns), but a successful employee vote strengthens the employer’s position in these cases. legal and procedural requirements, reducing the risk of rejection.
2. Employee Majority Support Secures the Agreement
The ruling confirms that majority employee support is the deciding factor in enterprise bargaining. Even if some bargaining representatives object, they cannot override the vote outcome.
However, unresolved issues may still be raised in different ways, typically through:
- Opposition to the FWC’s approval of the agreement
- Challenges under the Better Off Overall Test (BOOT)
- Claims of lack of genuine agreement
A strong ‘YES’ vote from employees makes it easier for employers to defend against these objections.
Final Thoughts
A well-run, transparent voting process is just as important as bargaining itself. Ensuring that votes are conducted fairly, securely, and in compliance with FWC standards can help avoid disputes and ensure a smooth approval process.
For businesses navigating enterprise agreement voting, working with an experienced independent balloting provider like IR BLOTS can help ensure compliance, fairness, and a seamless voting process—giving employers confidence in the validity of their agreements.
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