Australia: Full Bench overrides union and orders multi-enterprise bargain be put to vote

In mid June 2025, a Fair Work Commission Full Bench published its first decision applying sections 240A and 240B of the Fair Work Act 2009 (Cth) (FW Act). These provisions were introduced by the Secure Jobs, Better Pay reforms to create a new pathway for employers to put a multi-enterprise agreement (MEA) to a vote without unanimous union support.

These provisions are intended to prevent a single union from unreasonably blocking the conclusion of bargaining where the majority of representatives support the proposed agreement. The decision sets a clear precedent for how the Commission will apply these new voting mechanisms.

Background

In Sydney Trains and NSW Trains [2025] FWCFB 117, the Full Bench permitted the employers to proceed with a vote on a proposed MEA despite opposition from the Electrical Trades Union (ETU), which had withdrawn from the broader bargaining group in 2024. The proposed agreement had in-principle support from Sydney Trains, NSW Trains and four of the five unions involved in bargaining: the RTBU, AMWU, APESMA and ASU. The ETU declined to give its agreement and instead filed applications for bargaining orders against both the employers and the RTBU. Its objections related to minor wording changes to a Commission-recommended clause and a new “Trades Uplift” claim raised for the first time in June 2025.

Under s 180A(2)(a), employers are generally prohibited from putting a MEA to a vote unless all employee organisation bargaining representatives agree. However, s 240A allows an employer to apply to the FWC for permission to proceed without unanimous support, and s 240B sets out the two requirements the Commission must be satisfied of:

• That the refusal to agree was unreasonable in the circumstances (s 240B(a)); and
• That holding the vote would not undermine good faith bargaining (s 240B(b)).

Findings

The Full Bench found that both requirements of s 240B were met and granted the voting request order. Its conclusion that the ETU's refusal was unreasonable in the circumstances was based on the following key findings ([55]–[58]):

• Bargaining had been ongoing for over 12 months and had resulted in broad in-principle agreement on almost all matters, including wages and conditions. The only outstanding issues related to a narrow drafting point and a new claim raised by the ETU. The Full Bench considered the full history and noted the impending expiry of the protected action suspension period (1 July 2025) as relevant to the timing ([55]).
• The ETU’s refusal was primarily linked to proposed changes to the Commission-recommended “Section 5” clause. The Full Bench concluded these changes did not materially affect the clause’s operation and were therefore not a reasonable basis to block the vote.

“It is unreasonable for the ETU to refuse to agree … as a result of an insistence of immaterial changes to one draft clause.” ([56])

• The ETU also relied on its newly raised “Trades Uplift” claim, which had not been advanced during the bargaining process until 2 June 2025. The Full Bench found this late-stage introduction lacked justification and could not support a refusal:

“We are not persuaded that [the ETU’s explanation] provides an adequate explanation for the late addition of this claim.” ([57])

• The Full Bench emphasised that the agreement contained a strong package of wage increases (3 x 4%), backpay to 1 May 2024, and over 100 agreed conditions. The ETU supported the majority of the package. Blocking the vote would deny employees the opportunity to approve an outcome broadly agreed upon and beneficial. The Full Bench found this “denies those employees an opportunity to vote on an agreement that will, if approved, bring an end to long-running and heavily contested bargaining…”. ([58])

In addition to the unreasonableness finding, the Full Bench also found that allowing the vote would not undermine good faith bargaining (s 240B(b)):

• The ETU argued it had been excluded from bargaining and denied relevant information. The Full Bench had already rejected these claims in dismissing the ETU’s bargaining order applications and did not accept them as a reason to deny the voting request order ([59]).

Accordingly, the ETU’s related applications for bargaining orders were also dismissed, with the Full Bench finding no breach of good faith bargaining by either the employers or the RTBU ([46]).

This decision provides the clearest guidance to date on how the Commission will apply voting request powers introduced by the Secure Jobs, Better Pay reforms.

Implications for employers

The Full Bench’s reasoning in this case offers clear guidance for employers engaged in multi-enterprise bargaining, particularly where progress is being delayed by one bargaining representative. It illustrates how the Commission will approach applications under ss 240A and 240B, including what constitutes an unreasonable refusal and when a vote can proceed despite lack of unanimous support. The decision confirms that voting request orders under s 240A are a practical mechanism where a union’s refusal is unreasonable, particularly if the majority of bargaining representatives support the outcome and the proposed terms are clearly beneficial to employees.

The Full Bench took into account the substantial benefits of the agreement in assessing the unreasonableness of the ETU’s refusal. The agreement included:

• Three annual 4% wage increases;
• Backpay to May 2024; and
• Over 100 agreed improvements to conditions.

In turn, these features helped justify the Full Bench’s view that employees should not be denied the chance to vote on a comprehensive and beneficial offer ([58]).

The decision underscores the need to manage timing and scope of claims carefully. Late-stage claims or objections (such as the ETU’s “Trades Uplift” claim) are unlikely to justify withholding consent to a vote unless they materially impact the agreement. Employers should be prepared to clearly document both bargaining process efforts and the substance of the final offer to support a potential s 240A application, especially if consensus becomes difficult to reach.