Why start-up enterprise agreements remain under intense scrutiny

In recent years, some employers have utilised the capacity – originally legitimised in a series of cases involving John Holland¹ and more recently endorsed by the High Court in Aldi² – to make an enterprise agreement with a small group of employees, but with a coverage clause that enables the agreement to apply to broader groups of workers in future.

In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCA 77 (One Key Decision), however, the Full Federal Court (Bromberg, Katzmann and O'Callaghan JJ) (FFC) largely upheld the decision of Flick J at first instance, overturning the Fair Work Commission (FWC)'s approval of this kind of agreement.

In this article, we examine the One Key Decision, where the FFC found that an agreement voted up by a small group of employees - which was not representative of the larger group of employees to whom the agreement would ultimately apply - was not genuinely agreed to in accordance with s186(2)(a)