Enterprise Agreement Bargaining: Can Unions Be Heard Without Bargaining Representative Status?

| April 24, 2025

Can Unions Be Heard Without Bargaining Representative Status?

The short answer? Yes, they can! The recent case of Boom Logistics Projects Pty Ltd [2025] FWC 684 demonstrates that the Fair Work Commission (FWC) has the discretion to allow unions to participate in enterprise agreement approval processes, even if they are not bargaining representatives. 

This decision confirms the FWC’s view that unions play a critical role in the agreement approval process, as “contradictors,” helping to identify flaws in agreement-making processes, even when they were not directly involved in bargaining. 

Background of the Case

On 20 December 2024, Boom Logistics applied to the FWC for approval of its enterprise agreement. The CFMEU, although not a bargaining representative for the agreement, sought to be heard under section 590(1) of the Fair Work Act 2009 (Cth), raising concerns about whether the agreement complied with statutory requirements. 

While the CFMEU had members employed by Boom Logistics, all of these members had appointed alternative bargaining representatives. Despite this, the CFMEU argued that its involvement would assist the FWC in scrutinising the agreement to ensure compliance with the law. 

Boom Logistics opposed the CFMEU’s participation, contending that the union lacked standing as a bargaining representative and that the FWC could fulfil its statutory functions without the union’s input. 

FWC Findings: Why Was the Union Allowed to Participate?

Deputy President O’Keeffe carefully considered submissions from both parties and ultimately decided to allow the CFMEU to be heard. The key reasons for this decision included: 

> Broad Discretion Under Section 590(1) 

The FWC has wide discretion under section 590(1) of the Fair Work Act 2009 to allow parties to be heard if it deems it necessary for fulfilling its statutory functions. Deputy President O’Keeffe acknowledged that this discretion is not always appropriate to exercise when a union is not a bargaining representative. However, in this case, he found it warranted. 

> Importance of Independent Scrutiny 

The Deputy President emphasised that one of the FWC’s key functions is to ensure that agreements—and the processes used to secure them—are properly scrutinised. He noted that unions acting as contradictors have historically played a vital role in exposing flaws in agreement-making processes. 

For example: 

• In Rigsafe WA [2025] FWC 448, the CFMEU uncovered that employees had been misled about their representational rights, leading to the agreement being rejected. 

• In AWU v Workforce Logistics Pty Ltd [2023] FWCFB 157, union intervention revealed that the employer had misled the FWC during the approval process. 

While there was no suggestion that Boom Logistics had acted improperly, Deputy President O’Keeffe preferred to err on the side of caution and allow the CFMEU to provide independent scrutiny. 

> Protecting Employee Rights 

The Deputy President highlighted that approving an enterprise agreement extinguishes certain employee rights for the duration of the agreement. This makes it critical for the FWC to ensure that all preconditions for approval are met. Allowing the CFMEU to act as a contradictor was seen as a way to assist in this process. 

Key Takeaways for Employers

Unions Can Be Heard Without Bargaining Representative Status 

Be prepared for potential union involvement at any time throughout the bargaining process, even when the union is not a bargaining representative, particularly where unions have a significant presence in your workforce or industry. 

Ensure you’ve prepared a strategy for engagement with Union’s in their role as ‘contradictors’, and executed this as part of your overall appraoch to bargaining. Prevention is better than cure. 

Compliance is Non-Negotiable 

Ensure you comply with all statutory requirements during the agreement-making process including issuing the NERR and providing accurate information to employees. Unions and the FWC will be ready to scrutinise any procedural flaws which may delay or derail the approval process. 

This case serves as a reminder for employers to approach enterprise bargaining with diligence and to be prepared for potential union involvement, even in circumstances where unions are not directly involved in bargaining. 

Final Thoughts

The Boom Logistics decision reinforces that enterprise agreement approval isn’t just a tick-box process—it’s a safeguard for employee rights, and unions can play a significant role in ensuring its integrity, even without formal bargaining representative status.

Employers should take this as an opportunity to revisit their bargaining frameworks, ensure all statutory requirements are met, and anticipate union scrutiny regardless of formal involvement. 

At IRiQ Law, we help employers navigate enterprise bargaining and approval with confidence. If you’re entering a new round of negotiations or facing challenges during the approval stage, contact us to learn how we can support your business.