Read our fact sheet on enterprise bargaining. Show
Download the fact sheet: OverviewEnterprise bargaining is the process of negotiation generally between the employer, employees and their bargaining representatives with the goal of making an enterprise agreement. The Fair Work Act 2009 establishes a set of clear rules and obligations about how this process is to occur, including rules about bargaining, the content of enterprise agreements, and how an agreement is made and approved. What is an agreement?A registered agreement sets out the terms and conditions of employment between an employee or group of employees and one or more employers. Under the national workplace relations system there are two categories of agreements:
Agreement-based transitional instruments include various individual and collective agreements that could be made before 1 July 2009 under the former Workplace Relations Act 1996. They also include Individual Transitional Employment Agreements (ITEAs) that were made during the 'bridging period' (1 July 2009 - 31 December 2009). These agreements will continue to operate as agreement based transitional instruments until terminated or replaced. Agreement-based transitional instruments include:
More information on agreement-based transitional instruments including the variation and termination of these agreements. What is an enterprise agreement?An enterprise agreement is between one or more national system employers and their employees, as specified in the agreement. Enterprise agreements are negotiated by the parties through collective bargaining in good faith, primarily at the enterprise level. Under the Fair Work Act 2009, an enterprise can mean any kind of business, activity, project or undertaking. Under the Fair Work Act 2009, the following new enterprise agreements can be made: Single-enterprise agreementA single-enterprise agreement is made between a single employer (or two or more single interest employers) and employees employed at the time the agreement is made, and who will be covered by the agreement. Single interest employers are employers that are in a joint venture or common enterprise or are related corporations. They can also be employers authorised as single interest employers by the Fair Work Commission, which may be either franchisees or other employers where the Minister for Employment has made a declaration. Multi-enterprise agreementA multi-enterprise agreement is made between two or more employers (that are not all single interest employers) and employees employed at the time the agreement is made and who will be covered by the agreement. Greenfields agreementA greenfields agreement is an enterprise agreement that is made in relation to a new enterprise of the employer or employers before any employees are employed. This can either be a single enterprise agreement or a multi-enterprise agreement. The parties to a greenfields agreement are the employer (or employers in a multi enterprise greenfields agreement) and one or more relevant employee associations (usually a trade union). What terms must be included in an enterprise agreement?An enterprise agreement is an agreement about permitted matters which are:
An enterprise agreement must contain the following terms:
You can access the model dispute settlement, flexibility and consultation terms from the Fair Work Commission website The rate of pay for an employee under an enterprise agreement cannot be less than the relevant rate of pay under the modern award that would apply to the employee or under a national minimum wage order. What can't be included in an enterprise agreement?An enterprise agreement cannot include any unlawful content. This includes:
The Fair Work Commission will review enterprise agreements for any unlawful content. The Fair Work Commission cannot approve an enterprise agreement that contains unlawful content. Terms in an enterprise agreement, transitional instruments (award or agreement-based), and modern awards cannot exclude the NES, and those that do will have no effect. Recent changes to superannuation laws extend choice of superannuation fund to employees under enterprise agreements. Enterprise agreements made on or after 1 January 2021 need to provide employees with a choice of superannuation fund. Any restrictions placed on employees’ choice of superannuation fund in enterprise agreements made on or after 1 January 2021 are not enforceable. Failure to pay superannuation into an employee’s choice of superannuation fund may result in employers having to pay superannuation charges. How is an enterprise agreement made?The Fair Work Act 2009 provides a simple, flexible and fair framework that assists employers and employees to bargain in good faith to make an enterprise agreement. Employers, employees and their bargaining representatives are involved in the process of bargaining for a proposed enterprise agreement. An employer must notify their employees of the right to be represented by a bargaining representative during the bargaining of an enterprise agreement (other than a greenfields agreement) as soon as possible, and not later than 14 days after the notification time for the agreement (usually the start of bargaining). The notification should be given to each current employee who will be covered by the enterprise agreement. An employer who is making a greenfields agreement must give written notice to each employee organisation that is a bargaining representative for the proposed agreement. This notice must include the start date of the six month negotiation period for the greenfields agreement. Who can be a bargaining representative?A bargaining representative is a person or organisation that each party to the enterprise agreement may appoint to represent them during the bargaining process. The Fair Work Act 2009 identifies the following as bargaining representatives:
For employees who are a member of a trade union, the default bargaining representative is their trade union unless the employee appoints another person. However, employees can generally appoint whoever they wish as their bargaining representative, including themselves. What if a bargaining representative benefits?Organisations that are bargaining representatives (employers, employer organisations, and unions) for a proposed enterprise agreement need to disclose certain financial benefits that they (or certain related parties) will (or could) get because of a term of the proposed agreement. The disclosure must be set out in a document with details of the relevant financial benefit (a ‘disclosure document’). An employer who creates a disclosure document must make it available to their employees. A union or employer organisation who creates a disclosure document must give it to the employer, who must then make it available to the employees. In both cases, failing to provide or make the disclosure document available as required can result in penalties in excess of $13,000 (for an individual) or $66,000 (for a company). Penalty amounts are subject to change. You can check the current maximum penalties at www.fairwork.gov.au You can access fact sheets and further information on corrupting benefits and the disclosure requirements for bargaining representatives from the Registered Organisations Commission website What are the requirements of good faith bargaining?Bargaining representatives are required to act in good faith in the process of bargaining for a proposed enterprise agreement. The following are the good faith bargaining requirements that a bargaining representative must meet:
The good faith bargaining requirements do not require a bargaining representative to make concessions during bargaining for the agreement, or reach agreement on the terms that are to be included in the agreement. Before the Fair Work Commission approves an enterprise agreement, they must be satisfied that approving the agreement would not undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement. In addition, a bargaining representative of an employee who will be covered by the agreement must not engage in pattern bargaining in relation to the agreement. Pattern bargaining is when a bargaining representative is representing two or more proposed enterprise agreements and seeks common agreement terms with two or more employers. However, it is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement. What are the steps to seek approval of an enterprise agreement?Once bargaining is complete and a draft enterprise agreement has been made, it must be submitted to a vote by the employees who will be covered by the agreement. Before a vote can occur for employee approval, the employer must ensure that:
Employees must endorse the agreement by voting for it. The vote cannot occur until at least 21 days from the date employees were notified of their right to have a bargaining representative. When is a vote successful?The vote is successful when one of the following occurs:
There are no employees to vote on a greenfields agreement. This type of agreement must be signed by each employer and each relevant employee organisation that it covers. Applying for Fair Work Commission approvalThe application for a proposed enterprise agreement must be lodged with the Fair Work Commission within 14 days of the agreement being made or within such further period as the Fair Work Commission allows. The application must be accompanied by:
To approve an enterprise agreement, the Fair Work Commission must be satisfied that:
Greenfields agreements are approved if the employee organisations covered by the agreement are entitled to represent the interests of a majority of the employees and it is in the public interest. If an employer and the employee organisations can't agree on the terms of a greenfields agreement after six months of bargaining, the employer can still lodge the agreement for approval with the Fair Work Commission. In these circumstances, the Fair Work Commission must be satisfied the agreement:
An enterprise agreement comes into operation seven days after approval by the Fair Work Commission, or at a later date as specified in the agreement. From this date on, an employee's terms and conditions are derived from the enterprise agreement. What if there is a bargaining dispute?Bargaining disputes may arise for a number of reasons, for example, a party may not be bargaining in good faith. If there is a bargaining dispute which cannot be resolved between the bargaining representatives, one or more bargaining representatives involved may apply to the Fair Work Commission for assistance in resolving a dispute. Where necessary, the Fair Work Commission may issue a bargaining order in relation to the proposed agreement. A bargaining order will include the actions that the Fair Work Commission require to be taken, actions that are not to be taken and other matters that the Fair Work Commission considers necessary to promote fair and efficient bargaining. When making a bargaining order, the Fair Work Commission must be satisfied that:
What if someone contravenes a bargaining order?The Fair Work Ombudsman can investigate contraventions of a good faith bargaining order. Where a person contravenes a bargaining order, the Fair Work Ombudsman may take legal action for penalties in excess of $13,000 (for an individual) or $66,000 (for a company). Penalty amounts are subject to change. You can check the current maximum penalties at www.fairwork.gov.au Alternatively, if a bargaining representative contravenes one or more bargaining orders, a bargaining representative can apply to the Fair Work Commission to assist in resolving the dispute. What happens if the parties are unable to reach agreement?Where parties are unable to reach agreement on the terms and conditions of a proposed enterprise agreement, a bargaining representative can make an application to the Fair Work Commission requesting assistance. The Fair Work Commission can make a workplace determination, which prescribes terms and conditions for those employees to whom it applies. In addition, if there is a serious and sustained contravention of a bargaining order that has significantly undermined bargaining, the Fair Work Commission can make a serious breach declaration. If matters are not then settled after 21 days, the Fair Work Commission can make a workplace determination. Employees are able to initiate industrial action when bargaining for a proposed enterprise agreement. There are strict rules which govern industrial action under the Fair Work Act 2009, including the rights, responsibilities and obligations of employers, employees and their organisations. For more information, please see the Fair Work Ombudsman Fact Sheet - Industrial Action. What assistance is there for low paid workers?A bargaining representative or a trade union can apply to the Fair Work Commission to get a low-paid bargaining authorisation. The Fair Work Commission can institute a low-paid authorisation where it believes it is in the public interest to do so. In deciding this, the Fair Work Commission looks at factors including:
The Fair Work Commission can then help certain low paid employees and their employers negotiate a multi enterprise agreement and make a determination in certain circumstances. What is an individual flexibility arrangement?While there are no longer statutory individual contracts under the Fair Work Act 2009, an employee and employer can enter into an individual flexibility arrangement (IFA) which varies the terms and conditions of an enterprise agreement in order to meet the genuine needs of the employee and employer. Every enterprise agreement must contain a flexibility term that provides for individual flexibility arrangements. When an employer and an employee enter into an IFA, it must:
If an IFA does not adhere to these terms it will still have effect. However, it may be in contravention of the Fair Work Act 2009. There are also strong protections which prevent undue influence or pressure being applied to an employee to get them to enter into an IFA. Penalties in excess of $13,000 (for an individual) or $66,000 (for a company) may apply. Penalty amounts are subject to change. You can check the current maximum penalties at www.fairwork.gov.au. An IFA can be terminated either by mutual agreement in writing between the employer and the employee, or by either the employer or employee, by giving written notice. Modern awards require 13 weeks notice but this may be different in an enterprise agreement (but no more than 28 days). For more information on IFAs, please see the Fair Work Ombudsman Best Practice Guide - Use of Individual Flexibility Arrangements. Contact usFair Work Online: www.fairwork.gov.au Fair Work Infoline: 13 13 94 Need language help?Contacting the Translating and Interpreting Service (TIS) on 13 14 50 Hearing and speech assistanceCall through the National Relay Service (NRS):
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