Can You Put an Agreement to a Vote Without Union Sign-Off?

| May 28, 2025

Understanding the Legal Framework

Can employers proceed to a vote without union agreement? Yes, in certain circumstances, employers can move to a vote even while bargaining is still ongoing and without union agreement.

That was the outcome in 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.

FWC Findings: 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 initiating a vote while bargaining had not concluded. Here’s what the FWC determined:

• Negotiation Strategy Was Not a Disclosure Breach

The TWU claimed that Veolia failed to disclose it had finalized 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.

Key Point: Employers are not required to disclose every element of their negotiation strategy. 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

TWU contended it had limited time to apply for a scope order after receiving notice of the vote. While the Commission acknowledged the tight timeline, it found no evidence that Veolia had misled the union or actively prevented it from taking appropriate action.

• The Union’s Case Was Serious, but Delay Was Not Justified

Deputy President Lake acknowledged that the TWU had a reasonably arguable case. However, he concluded that the balance of convenience did not support delaying the vote. He also emphasized that the union would have another opportunity to challenge the agreement if submitted for approval later.

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. This includes providing access to the proposed agreement, complying with notice requirements and ensuring a fair voting process.

> Managing Negotiation Strategy Is Not a Breach

Employers are not obligated to reveal every strategic move during negotiations. Holding back a final position or a decision to move to a vote does not, in itself, constitute a breach.

> Unions May Still Challenge the Agreement Later

Even if a vote is conducted, bargaining representatives may challenge the agreement at the approval stage. A common challenge includes questioning whether the group of employees covered by the agreement was fairly selected.

Final Thoughts

This case highlights that employers can legally move to a vote on an enterprise agreement without union sign-off if they comply with the Fair Work Act 2009’s good faith requirements. However, the process must remain transparent, fair, and legally compliant.

At IRiQ Law, we help employers design and deliver enterprise bargaining strategies that are legally sound and commercially effective. If your organisation is preparing to ballot an agreement, or responding to union objections, we can help you manage the process with confidence. 

Contact us today to discuss how we can support your bargaining strategy.