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Enterprise Agreements under the Fair Work Act: the devil is in the detail

8 February 2017

Are you thinking it is time to commence bargaining for your company’s next enterprise agreement? If so, here are some things to consider before you take a seat at the bargaining table, and to ensure your agreement has the best chance of being approved by the Fair Work Commission (FWC):

  • Be familiar with the strict requirements that you must follow under the Fair Work Act 2009 (FW Act) when it comes to when and how to issue employees with a notice of employee representational rights.
  • Determine which clauses in your current agreement are not working well, or need to be tweaked or reviewed, before you commence bargaining for the new proposed agreement.
  • Anticipate which clauses employees or their union will want to change or remove.
  • Obtain legal advice before and during the bargaining process to ensure you are meeting your obligations under the FW Act, and to ensure the clauses in the agreement meet the requirements of the FW Act.
  • Take the time to ensure the new proposed agreement, including any variations to it, meet the needs of the business.
  • Review any undertakings that the company had to give the FWC when the agreement was last approved. Ensure those undertakings are adequately addressed in the new proposed agreement so that the undertakings do not need to be given again.
  • Compare the new proposed agreement to the relevant modern award(s). Ensure employees will be better off overall under the new proposed agreement.
  • Comply with the FW Act’s strict requirements regarding employees having access to the new proposed agreement before they are asked to vote on it.
  • Consider what steps you will take during the access period to explain the new proposed agreement to employees covered by it, and factor the time needed for that process, into your timeline.
  • Ensure your FWC application and statutory declaration contain sufficient details to satisfy the FWC that the agreement was approved by a valid majority of employees that were fairly chosen, and moreover, that the agreement should be approved by the FWC without the need for a hearing.

When it comes to making an enterprise agreement under the FW Act, the devil is in the detail. There are a number of mandatory steps that an employer must meet in order to satisfy the FWC to approve an enterprise agreement. Indeed, if one or more of those steps are not met, then the FWC may decline to approve the agreement, even if a valid majority of employees voted in favour of it.

Don’t hesitate to contact Pamela Flynn (Director) if you would like your next proposed enterprise agreement reviewed, need assistance with your FWC forms, or if you require guidance and advice on your bargaining strategy.

The content of this article is general in nature and is not intended to and should not be relied on as a substitute for legal advice which is specific to your circumstances.

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