Enterprise Agreement Bargaining: Can Unresolved Issues Be Addressed After a Majority Vote?

| March 11, 2025

Does Bargaining Continue After Employees Approve an Agreement?

The notion that “Employees … not unions … Vote!” is a common phrase that gets rolled out as EA preparations begin. And there is a good reason. It is true.

A recent Full Federal Court decision has reinforced this IR Strategy 101 position, by clarifying that once an enterprise agreement goes to a vote and is approved by a majority of employees, the Fair Work Commission (FWC) no longer has jurisdiction to make a workplace determination.

In Australian Rail Track Corporation Limited v Australian Rail, Tram and Bus Industry Union [2024], the Full Federal Court ruled that bargaining ends when an enterprise agreement is approved, and as such the FWC does not have jurisdiction to make a workplace determination after that point.

Background of the Case

The Australian Rail Track Corporation (ARTC) began bargaining for a new enterprise agreement in December 2022, negotiating with multiple unions, including the Australian Rail, Tram and Bus Industry Union (RTBU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU).

After months of negotiations and industrial action—which was eventually terminated 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 approved the agreement, the unions attempted to extend bargaining by applying for a workplace determination under section 266(1)(c) of the Fair Work Act 2009 (Cth). They argued that some issues from bargaining remained unresolved.

ARTC challenged this, arguing that once the agreement was approved by employees, bargaining had ended, making the unions’ application invalid.

What Did the Courts Decide?

FWC Decision: Bargaining May Continue

The FWC Full Bench initially ruled that it still had jurisdiction to make a workplace determination under section 266(1)(c), even after the enterprise agreement was approved. This suggested that unions could continue to push for changes post-approval, potentially undermining 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 made and approved. The ruling made two key points: 

• Section 266(1)(c) does not allow a workplace determination to be made after an agreement is approved, because bargaining representatives lose their role once the agreement is finalised. 
• Allowing workplace determinations after approval would undermine the purpose of enterprise-level bargaining, which prioritises agreements made by employees and employers. 

This ruling reinforces the integrity of the enterprise bargaining process, ensuring that once employees approve an agreement, the outcome is final—even if some bargaining representatives disagree. 

Key Takeaways for Employers

1. Bargaining ends with agreement approval 

Get your agreement to a vote of employees as soon as you have something you’re confident they’ll approve.  Be ready and prepared to campaign for the YES vote, and to counter any union campaign on the NO vote. 

Once an enterprise agreement is approved by the FWC, bargaining representatives no longer have a role, and unresolved issues from bargaining cannot be revisited through a workplace determination. 

They can be, and often are, rehashed under the guise of union opposition to FWC Approval of an agreement, whether on boot or genuine agreement grounds, however a successful employee vote goes a long way to positioning employer Applicants well for that argument. 

2. Employee majority support is key 

This decision confirms that majority employee support is the deciding factor in enterprise bargaining. Even if some bargaining representatives oppose the final agreement, their objections do not override the majority vote outcome. 

However, unresolved issues can still resurface—often as union opposition to the FWC’s approval of the agreement on grounds such as: 

• Better Off Overall Test (BOOT) compliance 
• Claims of lack of genuine agreement 
• A strong employee ‘YES’ vote positions employers well to defend against these challenges. 

3. Secure Your Agreement Through Majority Support 

The Full Federal Court’s ruling confirms that bargaining ends when employees approve an enterprise agreement. Employers should focus on building majority employee support, ensuring that agreements are strategically developed, well-communicated, and legally sound before going to a vote.

By securing a clear ‘YES’ vote, employers can avoid post-approval disputes and legal delays, ensuring smooth implementation of workplace agreements.

At IRiQ Law, we assist businesses to develop and implement effective strategies for navigating bargaining.  Contact us today.