In certain circumstances, employers can move to a vote on an enterprise agreement even while bargaining is still ongoing and without union agreement.
This was affirmed in the case of Transport Workers’ Union of Australia v Veolia Environmental Services (Australia) Pty Ltd [2024] FWC 3222, where the Fair Work Commission (FWC) confirmed that putting an enterprise agreement to a vote without union agreement does not breach good faith bargaining obligations.
Why the Ballot Was Allowed to Proceed
The Transport Workers’ Union (TWU) applied for an interim order to delay the ballot, arguing the employer had acted unfairly by moving to a vote while bargaining had not yet concluded. The FWC provided the following reasons for allowing the vote to proceed:
- Negotiation Strategy Was Not a Disclosure Breach: The TWU claimed that Veolia failed to disclose it had finalised its position and planned to put the agreement to a vote. The FWC held that this did not breach the requirement to disclose relevant business information under section 228(b) of the Fair Work Act 2009. Employers are not required to disclose every element of their negotiation strategy, and withholding a final position or deciding to put an offer to a vote does not breach that requirement.
- The Union Was Not Prevented from Acting: The TWU contended it had limited time to apply for a scope order once it received notice of the vote. While the Commission acknowledged the timeline was tight, it found there was no evidence that Veolia had misled the union or actively prevented it from taking action.
- The Union’s Case Was Serious, but Delay Was Not Justified: Deputy President Lake acknowledged the TWU had a reasonably arguable case. However, he found the balance of convenience did not support delaying the vote. He also noted that the union would have another opportunity to challenge the agreement if it were later submitted for approval.
Key Takeaways for Employers
A Bargaining Representative’s Opposition Does Not Automatically Prevent a Vote
An employer is permitted to move to a ballot without agreement from bargaining representatives, as long as they comply with good faith bargaining requirements. However, it must still provide access to the proposed agreement, comply with notice requirements, and ensure a fair voting process.
Managing Negotiation Strategy Is Not a Breach
Employers are not required to disclose every strategic decision during bargaining. Withholding a final position is not, on its own, unlawful.
Unions May Still Challenge the Agreement Later
Even if a vote proceeds, bargaining representatives may challenge the agreement at the approval stage. One of the most common challenges is whether the group of employees covered by the agreement was fairly chosen.
Final Thoughts
Employers can legally move to a vote on an enterprise agreement without union sign-off, provided they adhere to good faith bargaining obligations under the Fair Work Act 2009. Ensuring compliance with all legal requirements is crucial to uphold the integrity of the bargaining process.
At IRBLOTS, we specialise in conducting enterprise agreement ballots that are legally compliant and tailored to your organisation’s needs. Our proprietary BLOTS platform ensures a secure, transparent, and efficient voting process, giving you confidence in the outcome.
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