A Full Bench of the Fair Work Commission has delivered a significant correction to the way the ‘genuine agreement’ test is being applied under the Secure Jobs, Better Pay reforms, overturning a decision that threatened to make enterprise bargaining unworkable for project-based employers.
The decision of 19 December 2025 confirms that an enterprise agreement can be genuinely agreed even where all employees who voted were casuals, and that representativeness must be assessed holistically rather than through rigid or mechanical rules.
The outcome is particularly significant for resources, energy and contracting employers that operate project-based businesses with fluctuating and predominantly casual workforces.
Background
Innovative Asset Solutions Pty Ltd (IAS), an industrial maintenance contractor operating across the oil and gas and minerals processing sectors, has been covered by enterprise agreements since 2014.
The business, acquired by UGL in 2021, operates in a typical project environment where work is won through tenders, projects ramp up and down, and workforce numbers fluctuate accordingly.
Bargaining for a replacement to the IAS Enterprise Agreement 2019–2023 commenced in July 2023 and continued for more than a year. Negotiations involved the AWU and CEPU, Employee Bargaining Representatives, multiple Commission-facilitated conferences and no fewer than five employee ballots.
The final ballot in September 2024 approved the agreement once voter eligibility was clarified by the independent ballot agent.
All 46 eligible employees were engaged on a casual basis and were working primarily on projects in Western Australia.
Key arguments and developments
In September 2024, IAS applied to the Commission for approval of the agreement.
The unions argued the agreement was not genuinely agreed under s 188(2)(b) of the Fair Work Act, claiming that a casual, project-based workforce largely working in one state could not be “sufficiently representative” of an agreement that also covered permanent roles, multiple classifications and national operations.
In March 2025, Commissioner Lim accepted the unions’ argument, refusing to approve the agreement solely because the voting cohort were casually employed. No findings were made on BOOT, explanation obligations or alleged misrepresentation.
IAS appealed. The Full Bench allowed the appeal which it heard in June 2025, finding the Commissioner had erred by treating the all-casual nature of the voting cohort as determinative.
The Full Bench emphasised that the genuine agreement test requires a broad, evaluative assessment. Relevant considerations include the nature of the employer’s business, its bargaining history, workforce fluctuations, and employees’ skills, qualifications and prior work experience, not just their current employment status.
The Full Bench found that IAS was an established contracting business with a history of national operations and enterprise bargaining, and that its employees had transferable skills enabling them to understand and approve the agreement’s terms.
The refusal decision was quashed, and the Full Bench substituted its own finding that the agreement was genuinely agreed for representativeness purposes, subject to remaining approval issues being resolved.
Implications for AREEA members
The decision provides welcome clarification for all employers, but particularly those which operate project-based and FIFO workforce models in the resources and energy industry.
It confirms that agreements will not automatically fail approval because the voting cohort is casual or geographically concentrated, provided the agreement-making process is authentic and supported by evidence.
However, the decision also highlights the increased scrutiny applied under Secure Jobs, Better Pay. Employers must be prepared to provide detailed evidence explaining their business model, workforce composition, skills and bargaining history. Poorly articulated cases at first instance risk refusal and costly appeals.
For AREEA members, the case underscores the need for disciplined bargaining strategies, robust documentation and early legal risk assessment. It also reinforces that while this decision assists employers on representativeness, other approval hurdles, such as BOOT, explanation obligations and process compliance, remain critical and will continue to be actively tested by unions.
AREEA has been consistently warning that poorly calibrated reforms risk choking off enterprise bargaining rather than strengthening it. We support members by challenging impractical interpretations and providing sector-specific guidance on bargaining strategy, agreement design and Commission processes.
Contact [email protected] for more information and advice.
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2026 is shaping up to be a huge year in industrial and employee relations, in policy and in practice. With dual reviews on-foot of the National Employment Standards and the controversial “Closing Loopholes” legislative amendments, plus recent Federal Court decision on workplace delegates rights and BHP Coal ‘same job same pay orders’ in the mix, resources employers need to be prepared and informed.
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