Enterprise bargaining is the process of negotiating workplace agreements between employers and their employees. In Australia, this process is governed by the Fair Work Act 2009.  It's a collective form of bargaining, meaning employees usually bargain together, often with the assistance of a union, to reach an agreement that covers everyone in the bargaining group.  The outcome of enterprise bargaining is an enterprise agreement, which replaces any existing award that would otherwise apply to the employees.

Here's a simple breakdown:

• Collective Negotiation: Employers and employees (or their representatives) work together to determine pay and conditions.
• Tailored Agreements: Enterprise agreements are tailored to the specific needs of the particular workplace or enterprise.
• Improved Terms and Conditions: The aim is to create agreements that offer improvements beyond the minimum standards set by awards.
• Flexibility and Productivity:  Bargaining can address issues specific to the workplace, leading to increased flexibility and productivity.
• Legally Binding: Once approved by the Fair Work Commission (FWC), enterprise agreements are legally binding on both employers and employees.

How is it different from an Award?

Awards set the minimum pay and conditions for employees in specific industries or occupations across Australia. They provide a safety net of basic entitlements. Enterprise agreements, on the other hand, allow for tailored arrangements that go above and beyond these minimum standards. They offer the opportunity to create a more customized and potentially more beneficial set of terms and conditions for a specific workplace.

What are the benefits of Enterprise Bargaining?

• Higher Wages and Better Conditions:  Bargaining can lead to improved wages, leave entitlements, and other working conditions.
• Greater Flexibility: Agreements can be tailored to suit the specific operational needs of the business and the preferences of employees.
• Improved Productivity: By addressing workplace-specific issues, enterprise bargaining can contribute to increased productivity.
• Stronger Relationships: The collaborative nature of bargaining can foster better communication and relationships between employers and employees.

If you're covered by an award, enterprise bargaining offers a chance to negotiate improvements and create a workplace agreement that better suits your needs.

Enterprise bargaining plays a crucial role in the Australian workplace relations system. It's more than just a negotiation about wages; it's a vital process with significant benefits for both employees and employers.

For Employees:

• Improved Wages and Conditions: Enterprise bargaining provides a pathway for employees to negotiate wages and conditions that are superior to the minimum standards set by awards. This can mean higher pay, better leave entitlements, enhanced superannuation contributions, and other improved benefits.
• Tailored Agreements:  Awards are designed to cover broad industries or occupations. Enterprise bargaining allows for agreements that are tailored to the specific needs and circumstances of a particular workplace. This can lead to more relevant and beneficial outcomes for employees.
• Voice and Representation:  Enterprise bargaining empowers employees to have a say in shaping their working lives. It provides a platform for their voices to be heard and their interests to be represented, often through unions or other bargaining representatives.
• Greater Job Satisfaction: When employees feel valued and have input into their workplace conditions, it can lead to increased job satisfaction and morale.

For Employers:

• Increased Productivity and Efficiency:  Enterprise agreements can be designed to improve workplace productivity and efficiency. By negotiating flexible working arrangements, innovative work practices, and addressing specific workplace issues, businesses can achieve better operational outcomes.
• Attracting and Retaining Staff: Offering competitive wages and conditions through enterprise agreements can help businesses attract and retain skilled employees in a tight labor market.
• Improved Employee Morale:  A collaborative bargaining process can foster a more positive and productive workplace culture, leading to improved employee morale and motivation.
• Tailored Solutions: Enterprise agreements allow businesses to develop workplace arrangements that are specifically tailored to their operational needs. This flexibility can be crucial for adapting to changing market conditions and achieving business objectives.
• Enhanced Communication and Cooperation:  The bargaining process itself can facilitate better communication and cooperation between management and employees, leading to stronger workplace relationships.

For the Economy:

• Productivity Growth:  At a national level, enterprise bargaining can contribute to productivity growth by encouraging innovation and efficiency at the workplace level.
• Wage Growth:  Bargaining can lead to higher wages for employees, which can stimulate economic activity and contribute to overall economic prosperity.

In essence, enterprise bargaining is important because it creates a system where employers and employees can work together to create mutually beneficial outcomes. It promotes fairness, flexibility, and productivity, leading to better workplaces and a stronger economy.

Enterprise bargaining is a collaborative process involving several key players.  Understanding the roles of each participant is essential for navigating the process effectively.

1. Employees:

Employees are at the heart of enterprise bargaining. They are the ones whose wages and conditions are being negotiated.  While they may not directly participate in every negotiation meeting, their views and preferences should be represented throughout the process.  Employees have the right to vote on the proposed agreement before it becomes legally binding.

2. Employers:

Employers are also central to the process. They represent the business and its operational needs during bargaining.  Employers (or their representatives) negotiate directly with employees or their bargaining representatives to reach an agreement.

3. Bargaining Representatives:

Bargaining representatives act on behalf of either employees or employers during the bargaining process.

• For Employees:  This is often a union official, but it can also be another employee chosen by the bargaining group.  Their role is to present employee claims, negotiate with the employer, and ensure employees are kept informed.
• For Employers: This can be a manager, a human resources representative, or an external consultant specializing in workplace relations.  They represent the employer's interests and negotiate on their behalf.

4. Fair Work Commission (FWC):

The FWC is Australia's independent workplace relations tribunal.  It plays a crucial role in overseeing the enterprise bargaining process.  The FWC doesn't participate in the negotiations, but it:

• Approves Agreements: The FWC reviews and approves enterprise agreements before they become legally binding.  It ensures agreements meet the legal requirements, including the "better off overall test" (BOOT).
• Provides Assistance: The FWC can assist bargaining representatives to resolve disputes and reach agreement.  It can issue bargaining orders if good faith bargaining isn't occurring.
• Deals with Disputes: If bargaining breaks down, the FWC can help resolve disputes through conciliation or, in some cases, arbitration.

5. Other Participants (in some cases):

• Other Unions or Employee Associations: In some cases, multiple unions or employee associations may be involved in bargaining, particularly in workplaces with diverse employee groups.
• Government Agencies:  Government agencies may be involved in specific situations, such as providing information or advice on relevant legislation.

It's important to remember that effective enterprise bargaining relies on open communication and cooperation between all participants.  Understanding the roles and responsibilities of each party contributes to a smoother and more productive bargaining process.

Bargaining representatives are crucial in enterprise bargaining, acting on behalf of employees or employers to negotiate agreement terms.  The Fair Work Act 2009 sets out who can fill these roles.

Employee Bargaining Representatives:

Employees have the right to choose their bargaining representative(s).  Options include:

• Union Officials:  Most commonly, employees choose a union official with expertise in bargaining and workplace law.  This is particularly common when the union already represents a significant portion of the employees in the bargaining group.
• Fellow Employees:  Employees can elect a colleague from within the bargaining group to represent them.  This can be a good option for smaller workplaces or when employees prefer representation from someone familiar with their specific circumstances.
• Other Individuals:  Employees can also choose someone from outside the workplace, such as a lawyer or other advocate, to be their bargaining representative.  However, for matters before the FWC, representation by external lawyers or paid agents generally requires permission from the FWC.
• Self-representation.

How are Employee Representatives Chosen?

The process for choosing employee representatives can vary, but it usually involves:

• Notification: The employer must notify employees of their right to be represented and the process for appointing a representative.
• Nomination and Election (if multiple candidates): Employees can nominate themselves or other individuals as bargaining representatives. If there are multiple nominations, an election may be held.
• Appointment: The chosen individual(s) are formally appointed as bargaining representatives.

Employer Bargaining Representatives:

Employers also appoint their bargaining representative(s).  Common choices include:

• Managers:  A manager with knowledge of the workplace and its operational needs.
• Human Resources Representatives: HR professionals with expertise in workplace relations.
• External Consultants:  Consultants specializing in enterprise bargaining and workplace law.  This can be a valuable option for employers who lack internal expertise or resources.

Restrictions on Bargaining Representatives:

• Removed Persons (Section 177A): Individuals removed from union office or certain employment due to specific misconduct are restricted from being bargaining representatives unless they obtain a certificate from the FWC.  This provision is designed to maintain the integrity of the bargaining process.
• Conflicts of Interest: Bargaining representatives should be free from conflicts of interest that could compromise their ability to represent their constituents effectively.

Importance of Choosing the Right Representatives:

Effective bargaining representatives are essential for a successful enterprise bargaining process.  They should:

• Possess Strong Negotiation Skills:  Be able to effectively communicate, advocate for their constituents, and find mutually acceptable solutions.
• Understand Workplace Relations Laws:  Have a solid understanding of the Fair Work Act and other relevant legislation.
• Be Committed to Good Faith Bargaining:  Approach negotiations constructively and with a genuine intention to reach an agreement.

Choosing the right bargaining representatives is a crucial first step in enterprise bargaining.  It can significantly impact the efficiency and outcome of the process.

The enterprise bargaining period is the timeframe during which negotiations for a new enterprise agreement take place.  However, there are circumstances where you might not be included or where the bargaining period itself might be paused or terminated.  This FAQ clarifies those situations under the federal Fair Work system.  For state-specific rules, consult with a workplace relations specialist.

Scenarios Where the Bargaining Period is Underway, but You're Not Involved or it's Paused:

1. Industrial Action Pauses Bargaining: If protected or unprotected industrial action occurs, the bargaining period is effectively paused.  This pause allows time for the industrial action to be resolved or for its impact to be assessed.  Similarly, a cooling-off period ordered by the FWC during protected industrial action also pauses bargaining.
2. FWC Orders Recommencement:  If the FWC issues an order for bargaining to recommence, it effectively restarts the bargaining period, potentially with new parameters or directions.  This often happens after a period of industrial action or a breakdown in negotiations.
3. Termination of Employment: If your employment is terminated during the bargaining period, you're no longer part of the bargaining process.  However, if your dismissal is found to be unlawful and related to the enterprise bargaining process (e.g., for being a bargaining representative), you may have grounds for legal action.
4. Protracted Negotiations: If bargaining has dragged on too long, a bargaining representative can apply to the FWC for assistance.  The FWC may then take steps to resolve the deadlock, potentially leading to a pause or termination of the bargaining period.  This can involve making an intractable bargaining declaration and imposing a workplace determination.
5. Serious Circumstances:  The FWC can suspend or terminate a bargaining period in serious circumstances, such as:
   • Endangerment of life or health.
   • Significant harm to a third party.
   • Significant economic harm.

Scenarios Where a Bargaining Period is Not Underway:

• Exclusion from Bargaining Group:  The proposed enterprise agreement might specifically exclude certain classifications or groups of employees.  If you're not included in the defined bargaining group, you won't be covered by the bargaining process or the resulting agreement.
• Unsuccessful Majority Support Determination:  If employees initiate bargaining by applying to the FWC for a majority support determination, and the FWC doesn't grant the determination, a bargaining period will not commence.  This can happen if the FWC isn't satisfied that a majority of employees want to bargain.

Important Note:  These scenarios are general examples and may not cover all situations.  The specific circumstances of your workplace and the nature of the proposed agreement will determine your involvement in the bargaining period.  If you have any doubts or questions, it's always best to seek advice from a workplace relations specialist or your union.

There's no fixed timeframe for enterprise bargaining.  The duration of the process can vary significantly depending on a range of factors, making it difficult to give a definitive answer.  However, understanding these factors can help you manage expectations and plan accordingly.

Factors Influencing Timeframes:

• Complexity of the Issues:  Simple agreements focusing on a few key issues can be negotiated relatively quickly.  More complex agreements involving significant changes to pay and conditions, or addressing a wide range of issues, will naturally take longer.
• Number of Parties Involved: Bargaining involving multiple employers, unions, or employee groups can extend the timeframe due to the need for broader consultation and agreement.
• Willingness to Bargain in Good Faith:  A cooperative and constructive approach from all parties can significantly expedite the process.  Conversely, a lack of good faith bargaining, disagreements, or disputes can cause significant delays.
• FWC Approval Process:  Once an agreement is reached, it must be submitted to the FWC for approval.  The FWC's review process can take several weeks, depending on the complexity of the agreement and whether any issues are identified.

Typical Stages and Estimated Timeframes (as a rough guide):

• Preparation and Planning (several weeks): This stage involves gathering information, developing claims, and preparing for negotiations.
• Negotiation (several weeks to several months):  The actual negotiation process can vary greatly in length.  Regular meetings are usually scheduled, but the frequency and duration will depend on the complexity of the issues and the progress being made.
• Voting and Approval (several weeks): Once an agreement is reached, employees must vote to approve it.  Following employee approval, the agreement is submitted to the FWC for review and approval.
• FWC Review and Approval (several weeks): The FWC reviews the agreement to ensure it meets the legal requirements.  If the FWC is satisfied, it will approve the agreement and it becomes legally binding.

Potential Delays:

• Disagreements on Key Issues:  Disputes over wages, working hours, or other significant matters can stall negotiations.
• Lack of Good Faith Bargaining:  If one party is not bargaining genuinely, it can lead to delays and frustration.
• Industrial Action:  While industrial action can sometimes be a part of the bargaining process, it can also lead to further delays.
• FWC Intervention:  If bargaining breaks down, the FWC may need to intervene, which can add to the overall timeframe.

Managing Timeframes:

• Set Realistic Expectations:  Understand that bargaining can be a lengthy process and plan accordingly.
• Focus on Key Issues: Prioritize the most important issues to avoid getting bogged down in minor details.
• Communicate Effectively:  Open and transparent communication between all parties can help prevent misunderstandings and keep the process moving forward.
• Seek Assistance from the FWC:  If bargaining is stalled, the FWC can provide assistance and support to help resolve disputes and reach agreement.

While it's impossible to predict the exact duration of enterprise bargaining, being aware of the factors that can influence timeframes and taking proactive steps to manage the process can help ensure a more efficient and successful outcome.

Initiating enterprise bargaining requires careful planning and adherence to the Fair Work Act 2009. Here's a step-by-step guide to get you started:

1. Determine the Bargaining Group:

Clearly define which employees will be covered by the proposed agreement. This group should be "fairly chosen" and may be based on classifications, work locations, or other relevant factors.  Consider factors like job roles, departments, or locations to ensure the group is appropriate for a single agreement.

2. Notify Employees of their Representational Rights:

The employer must notify all employees in the proposed bargaining group of their right to be represented by a bargaining representative. This notice must be given in writing and explain the process for appointing a representative, including the default representation rules if employees are union members.  This notification is crucial for ensuring employees are aware of their rights and can participate effectively in the bargaining process.

3. Appoint Bargaining Representatives:

Both employees and employers need to appoint their bargaining representatives.  Employees can choose a union official, a fellow employee, or another person to represent them.  Employers typically appoint a manager or human resources representative.  These representatives will be responsible for conducting the negotiations and communicating with the other parties.

4. Develop Claims:

Employees and their representatives should develop a clear set of claims outlining their desired improvements to wages and conditions.  These claims should be specific and measurable, addressing issues like pay rates, leave entitlements, working hours, and other relevant matters.  Thorough preparation at this stage is essential for effective bargaining.

5. Commence Bargaining:

Bargaining can commence when the employer agrees to bargain, or when a majority support determination is made by the FWC (in cases where the employer doesn't voluntarily agree to bargain).  The notification time, when the employer agrees to bargain or initiates bargaining, marks the official start of the bargaining process.  This triggers certain obligations, such as the requirement for good faith bargaining.

6. Notifying the FWC (for multi-enterprise agreements):

If the proposed agreement covers multiple employers (a multi-enterprise agreement), a supported bargaining authorisation may be required from the FWC before bargaining can commence.  This authorization ensures certain protections and facilitates the bargaining process for agreements covering multiple businesses.

Key Considerations:

• Good Faith Bargaining:  All bargaining representatives are legally obligated to bargain in good faith. This includes attending meetings, disclosing relevant information, and genuinely considering proposals.
• Permitted Matters:  Enterprise agreements can only cover "permitted matters," which relate to the employment relationship.
• Better Off Overall Test (BOOT):  The proposed agreement must pass the BOOT, meaning each employee covered by the agreement must be better off overall than under the relevant award.

Initiating enterprise bargaining is a formal process with specific legal requirements.  By following these steps and understanding the key principles, you can ensure a smooth and productive start to the bargaining process.

Reaching an agreement in enterprise bargaining is a significant milestone.  However, the process isn't complete until the agreement is formally approved and becomes legally binding. Here's what happens after the bargaining representatives reach an in-principle agreement:

1. Finalizing the Agreement Document:

The agreed-upon terms and conditions are compiled into a formal enterprise agreement document. This document must include specific clauses required by the Fair Work Act 2009, such as a flexibility term and a dispute resolution procedure.  Accuracy and completeness are crucial at this stage to avoid delays in the approval process.

2. Explaining the Agreement to Employees:

The employer must take all reasonable steps to explain the terms of the agreement to all employees who will be covered by it. This explanation should be clear and accessible, addressing any questions or concerns employees may have.  This ensures employees understand the implications of the agreement before voting on it.

3. Employee Vote:

The employer conducts a vote of the employees covered by the proposed agreement.  A majority of employees who cast a valid vote must approve the agreement for it to proceed to the next stage.  This democratic process ensures employee support for the final agreement.

4. Applying for FWC Approval:

After the agreement is approved by employees, a bargaining representative must apply to the Fair Work Commission (FWC) for approval.  The application must include a signed copy of the agreement and any required declarations.  This application triggers the FWC's review process.

5. FWC Review and Approval:

The FWC assesses the agreement to ensure it meets the legal requirements, including:

• Genuine Agreement: The FWC must be satisfied that the agreement was genuinely agreed to by the employees.
• Better Off Overall Test (BOOT): The FWC assesses whether each employee covered by the agreement is better off overall than under the relevant award.
• No Unlawful Terms: The agreement must not contain any terms prohibited by the Fair Work Act.

If the FWC is satisfied that the agreement meets all requirements, it will approve the agreement.

6. Commencement of the Agreement:

Once approved by the FWC, the enterprise agreement becomes legally binding and comes into operation.  The agreement usually commences seven days after FWC approval, or on a later date specified in the agreement.  From this date forward, the enterprise agreement governs the employment relationship for the covered employees.

Reaching an agreement is a crucial step, but it's important to remember the subsequent steps required for formal approval.  By understanding this process, you can ensure a smooth transition from negotiation to a legally binding enterprise agreement.

Reference/s:

~ https://www.fwc.gov.au/work-conditions/enterprise-agreements/make-enterprise-agreement/process-make-agreement

Reaching an agreement in enterprise bargaining is a significant milestone.  However, the process isn't complete until the agreement is formally approved and becomes legally binding. Here's what happens after the bargaining representatives reach an in-principle agreement:

1. Finalizing the Agreement Document:

The agreed-upon terms and conditions are compiled into a formal enterprise agreement document. This document must include specific clauses required by the Fair Work Act 2009, such as a flexibility term and a dispute resolution procedure.  Accuracy and completeness are crucial at this stage to avoid delays in the approval process.

2. Explaining the Agreement to Employees:

The employer must take all reasonable steps to explain the terms of the agreement to all employees who will be covered by it. This explanation should be clear and accessible, addressing any questions or concerns employees may have.  This ensures employees understand the implications of the agreement before voting on it.

3. Employee Vote:

The employer conducts a vote of the employees covered by the proposed agreement.  A majority of employees who cast a valid vote must approve the agreement for it to proceed to the next stage.  This democratic process ensures employee support for the final agreement.

4. Applying for FWC Approval:

After the agreement is approved by employees, a bargaining representative must apply to the Fair Work Commission (FWC) for approval.  The application must include a signed copy of the agreement and any required declarations.  This application triggers the FWC's review process.

5. FWC Review and Approval:

The FWC assesses the agreement to ensure it meets the legal requirements, including:

• Genuine Agreement: The FWC must be satisfied that the agreement was genuinely agreed to by the employees.
• Better Off Overall Test (BOOT): The FWC assesses whether each employee covered by the agreement is better off overall than under the relevant award.
• No Unlawful Terms: The agreement must not contain any terms prohibited by the Fair Work Act.

If the FWC is satisfied that the agreement meets all requirements, it will approve the agreement.

6. Commencement of the Agreement:

Once approved by the FWC, the enterprise agreement becomes legally binding and comes into operation.  The agreement usually commences seven days after FWC approval, or on a later date specified in the agreement.  From this date forward, the enterprise agreement governs the employment relationship for the covered employees.

Reaching an agreement is a crucial step, but it's important to remember the subsequent steps required for formal approval.  By understanding this process, you can ensure a smooth transition from negotiation to a legally binding enterprise agreement.

Good faith bargaining is a cornerstone of the enterprise bargaining process in Australia.  It's a legal requirement under the Fair Work Act 2009, and understanding what it means is crucial for both employers and employees.

What is Good Faith Bargaining?

Good faith bargaining means approaching negotiations with a genuine intention to reach an agreement. It's about creating a constructive and cooperative environment where all parties can work together to find mutually acceptable solutions.  It's not about one side dictating terms or refusing to compromise.

The Good Faith Bargaining Requirements:

The Fair Work Act outlines specific requirements for good faith bargaining, which include:

• Attending and Participating in Meetings:  Turning up to meetings and actively engaging in discussions is essential.  This includes listening to the other side's views, asking questions, and putting forward proposals.
• Disclosing Relevant Information: Sharing information necessary for bargaining is a key aspect of good faith.  This doesn't include confidential or commercially sensitive information, but it does cover things like pay rates, classifications, and proposed changes to working arrangements.
• Responding to Proposals:  Bargaining representatives should respond to proposals made by the other side in a timely manner.  Simply ignoring proposals is not considered good faith bargaining.  Providing reasons for rejecting a proposal is also good practice.
• Giving Genuine Consideration to Proposals:  This means seriously considering the other side's proposals, even if you don't initially agree with them.  It's about being open to compromise and exploring different options.
• Refraining from Capricious or Unfair Conduct:  Actions that undermine collective bargaining or freedom of association are not permitted.  This includes things like intimidating bargaining representatives or trying to bypass the bargaining process.
• Recognizing and Bargaining with Representatives:  Each side must recognize and bargain with the appointed representatives of the other side.

What Good Faith Bargaining Doesn't Require:

It's important to note that good faith bargaining doesn't require:

• Making Concessions:  You're not obligated to agree to everything the other side proposes.  Bargaining involves give and take, but you're not required to make concessions if they're not in your best interests.
• Reaching Agreement:  While the aim is to reach an agreement, there's no guarantee this will happen.  Sometimes, despite best efforts, parties may be unable to agree on terms.

What Happens if Good Faith Bargaining Isn't Occurring?

If one party believes the other is not bargaining in good faith, they can apply to the FWC for assistance.  The FWC can:

• Issue a Bargaining Order:  This order can compel a party to meet the good faith bargaining requirements.
• Make Recommendations: The FWC can make recommendations to help resolve the dispute and get negotiations back on track.
• Deal with Disputes:  If bargaining has completely broken down, the FWC can help resolve the dispute through conciliation or arbitration.

Good faith bargaining is essential for a successful enterprise bargaining process.  By understanding the requirements and acting constructively, both employers and employees can work together to achieve mutually beneficial outcomes.

When negotiating an enterprise agreement, it's essential to understand what topics can be included. The Fair Work Act 2009 defines "permitted matters," which are the allowable subjects for inclusion in an enterprise agreement.  Including matters outside this scope can render those parts of the agreement invalid.

What are Permitted Matters?

Permitted matters generally relate to the relationship between the employer and the employees covered by the agreement.  They can be broadly categorized as follows:

• Matters Pertaining to the Employer-Employee Relationship: This is the core of most enterprise agreements and includes:
  • Remuneration: Wages, salaries, allowances, bonuses, loadings, penalty rates, and other forms of payment.
  • Hours of Work: Ordinary hours, rostering, overtime, breaks, and other time-related aspects of work.
  • Leave: Annual leave, personal/carer's leave, long service leave, parental leave, and other forms of leave.
  • Superannuation:  Contributions beyond the statutory minimum.
  • Job Classifications and Skills:  Defining different job roles and skill levels within the workplace.
  • Performance Management: Procedures for managing employee performance.
  • Dispute Resolution:  Processes for resolving workplace disputes.
  • Consultative Mechanisms:  Arrangements for consultation between the employer and employees on workplace matters.
  • Representation:  Arrangements for employee representation, such as through unions or other representatives.
• Matters Pertaining to the Relationship Between the Employer(s) and Union(s): This covers aspects like:
  • Deductions from Wages for Union Dues:  With employee consent, deductions for union membership fees.
  • Access to the Workplace for Union Officials:  Providing union officials with reasonable access to the workplace to communicate with members.
  • Consultation with Unions on Workplace Matters:  Arrangements for consulting with unions on issues affecting their members.
• Matters Pertaining to the Agreement's Operation: This includes provisions relating to:
  • Duration of the Agreement: Setting the nominal expiry date of the agreement.
  • Coverage: Defining which employees and employers are covered by the agreement.
  • Variation and Termination:  Setting out procedures for varying or terminating the agreement.

Examples of Matters Not Permitted:

• Matters Unlawful Under Other Laws:  An agreement cannot include terms that violate other laws, such as discrimination laws or occupational health and safety laws.
• Matters Deemed Objectionable:  Certain terms are considered objectionable and cannot be included, such as those that restrict an employee's right to join a union or engage in industrial activity.
• Matters Primarily of a Commercial Nature:  While agreements can address productivity and efficiency, they shouldn't primarily focus on commercial decisions that don't directly relate to the employment relationship.  For example, an enterprise agreement is not the appropriate place to detail company strategy or investment decisions.

Why are Permitted Matters Important?

Restricting enterprise agreements to permitted matters ensures they focus on issues relevant to the employment relationship.  It helps protect employees from unfair or unlawful terms and maintains the integrity of the bargaining process.  If an agreement includes non-permitted matters, those specific terms may be deemed invalid by the FWC.

Understanding permitted matters is crucial for effective enterprise bargaining.  By focusing on these allowable topics, bargaining representatives can ensure the agreement is legally sound and addresses the core concerns of both employers and employees.

Enterprise agreements offer flexibility in tailoring terms and conditions to suit a specific workplace. However, the Fair Work Act 2009 sets clear limits on what can be included.  Understanding these limitations is crucial for ensuring your agreement is legally sound and approved by the Fair Work Commission (FWC).

Here's a breakdown of what cannot be included:

1. Unlawful Terms (Section 194):

The Act specifically prohibits certain types of terms, including:

• Discriminatory Terms:  Terms that discriminate against employees based on attributes like race, gender, age, or religion are unlawful unless they relate to the inherent requirements of a particular job.
• Objectionable Terms: These include terms that:
  • Require or permit a breach of general protections.
  • Require the payment of bargaining services fees.
  • Allow an employee or employer to unilaterally opt out of the agreement.
• Objectionable Emergency Management Terms:  These relate to agreements covering designated emergency management bodies and can't unduly restrict their ability to manage volunteers or emergencies.
• Terms Affecting Unfair Dismissal:  Agreements can't exclude or modify unfair dismissal rights for employees who would otherwise be protected.
• Terms Inconsistent with Industrial Action Laws:  Terms can't contradict or undermine the laws regarding protected industrial action.
• Unlawful Right of Entry Terms:  Terms can't grant right of entry beyond what's permitted under the Act.
• Unlawful Superannuation Terms:  Terms relating to default superannuation funds must comply with specific requirements.

2. Non-Permitted Matters:

Agreements must pertain to the employment relationship and can't include matters outside this scope, such as:

• Matters Primarily of a Commercial Nature:  While productivity and efficiency can be addressed, the agreement shouldn't focus on broader business decisions unrelated to employment.  For example, details of company strategy or investment plans are not permitted matters.

3. Terms Undermining Good Faith Bargaining:

Terms that restrict freedom of association or undermine collective bargaining are prohibited.  Examples include:

• Restricting Union Membership:  Clauses preventing employees from joining or participating in a union.
• Penalizing Industrial Activity:  Terms that punish employees for engaging in lawful industrial action.

4. Terms Contrary to the NES:

Agreements cannot exclude or reduce the National Employment Standards (NES).  These are the 10 minimum entitlements for all employees in Australia.  While agreements can improve on the NES, they cannot offer less than the minimum standards.

5. Unreasonable Terms:

Even if a term isn't explicitly prohibited, the FWC can deem it unreasonable and refuse to approve the agreement.  This can occur if the term is considered unfair, overly restrictive, or contrary to the public interest.

Consequences of Including Prohibited Terms:

If an enterprise agreement includes prohibited terms, the FWC can:

• Refuse to Approve the Agreement: The entire agreement may be rejected.
• Sever the Unlawful Terms: The FWC can remove the unlawful terms while approving the rest of the agreement.
• Impose Undertakings: The FWC may approve the agreement with undertakings, requiring the employer to take specific actions to rectify the issues.

It's crucial to carefully consider the content of your enterprise agreement and ensure it complies with the Fair Work Act.  Seeking legal advice is highly recommended to avoid including prohibited terms and ensure your agreement is approved by the FWC.

The Better Off Overall Test (BOOT) is a critical component of the enterprise bargaining process in Australia.  It's a safeguard designed to ensure that every employee covered by a proposed enterprise agreement is better off overall under the agreement than they would be under the relevant modern award.

What is the BOOT?

The BOOT is a comparative assessment conducted by the Fair Work Commission (FWC).  The FWC meticulously compares the terms and conditions of the proposed agreement with the relevant award.  It considers the entire package of entitlements, including wages, hours of work, leave, and other benefits.

How Does the BOOT Work?

The FWC takes a holistic approach, considering both the advantages and disadvantages of the proposed agreement compared to the award.  It doesn't simply compare individual terms line by line.  Instead, it looks at the overall impact on the employee's employment conditions.

Here's a simplified breakdown:

1. Identify the Relevant Award: The FWC determines which modern award would apply to the employees if the enterprise agreement didn't exist.
2. Compare Terms and Conditions: The FWC compares the proposed agreement's wages, hours, leave entitlements, and other benefits to those provided by the award.
3. Assess the Overall Impact: The FWC considers the combined effect of all terms, weighing up any improvements against any reductions in entitlements.
4. Consider Reasonably Foreseeable Work Patterns: The FWC considers the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time.

Who Needs to Pass the BOOT?

Every single employee covered by the proposed enterprise agreement must be better off overall.  If even one employee is found to be worse off, the FWC can refuse to approve the agreement.

What Happens if the BOOT Isn't Satisfied?

If the FWC finds that the proposed agreement doesn't pass the BOOT, it will generally not approve the agreement.  The bargaining representatives will then need to return to the negotiating table and modify the agreement to address the FWC's concerns.  They can then resubmit the revised agreement for approval.  In rare cases, the FWC may approve an agreement that doesn't strictly meet the BOOT if it's in the public interest to do so, but this requires exceptional circumstances.

Why is the BOOT Important?

The BOOT is a vital protection for employees. It ensures that enterprise bargaining leads to genuine improvements in working conditions and prevents agreements that erode award standards.  It's a key element in maintaining a fair and balanced workplace relations system.

The BOOT can be a complex process, and seeking advice from workplace relations specialists can be beneficial for both employers and employees during enterprise bargaining.  Understanding the BOOT and its implications is essential for achieving a successful outcome in enterprise bargaining.

An intractable bargaining declaration is a formal declaration made by the Fair Work Commission (FWC) signifying that enterprise bargaining has reached a deadlock. It's a significant step indicating that negotiations have broken down and there's little chance of the parties reaching an agreement on their own.

When Can an Intractable Bargaining Declaration Be Made?

The FWC can make an intractable bargaining declaration if:

• Bargaining Dispute: A bargaining representative has applied to the FWC to deal with a bargaining dispute.
• No Prospect of Agreement: The FWC is satisfied there's no reasonable prospect of the parties reaching an agreement without intervention.
• Minimum Bargaining Period: A minimum period (usually nine months) has passed since the nominal expiry date of the previous agreement or the start of bargaining.
• FWC Assistance: The FWC has already attempted to assist the parties to reach agreement, typically through conciliation.

What Happens After an Intractable Bargaining Declaration?

After an intractable bargaining declaration, the FWC may:

• Set a Post-Declaration Negotiating Period: The FWC might set a further period for the parties to try and reach an agreement, even though bargaining has been declared intractable. This provides a final opportunity for negotiation.
• Make an Intractable Bargaining Workplace Determination: If the parties still can't reach an agreement, the FWC can make a workplace determination. This determination sets the wages and conditions for the employees, effectively imposing an outcome on the parties.

What is an Intractable Bargaining Workplace Determination?

A workplace determination made after an intractable bargaining declaration sets the terms and conditions of employment for the employees covered by the proposed agreement.  It's a last resort measure used when negotiations have completely broken down. The determination will include:

• Agreed Terms: Any terms the parties had already agreed upon during bargaining.
• FWC Determined Terms: Terms determined by the FWC to resolve the outstanding issues.  These terms will generally be based on the claims made by the parties and the FWC's assessment of what is fair and reasonable.

The determination operates as if it were an enterprise agreement, becoming legally binding on both employers and employees.

Why is an Intractable Bargaining Declaration Important?

While it signifies a breakdown in negotiations, the intractable bargaining declaration is an important part of the bargaining process. It allows the FWC to step in and help resolve disputes when the parties are unable to do so themselves.  It also provides a mechanism for ensuring that employees aren't left indefinitely without an agreement.

An intractable bargaining declaration is a serious step, and it's in everyone's best interests to try and reach an agreement before the FWC needs to make such a declaration.  Understanding the implications of an intractable bargaining declaration is crucial for navigating the enterprise bargaining process effectively.

While the goal of enterprise bargaining is to reach a mutually agreeable outcome, sometimes negotiations can stall or break down completely.  The Fair Work Act 2009 provides several avenues for resolving disputes and moving forward when this happens.

1. Resolving Disputes at the Workplace Level:

The first step should always be to attempt to resolve the dispute at the workplace level. This involves:

• Further Discussions: Bargaining representatives should continue discussions and explore options for compromise.
• Internal Dispute Resolution: Many workplaces have internal dispute resolution procedures that can be utilized.
• Mediation:  A neutral third party can assist the parties in finding a solution.

2. Seeking Assistance from the FWC:

If workplace-level attempts are unsuccessful, either bargaining representative can apply to the Fair Work Commission (FWC) for assistance. The FWC can:

• Facilitate Bargaining: The FWC can help facilitate further negotiations between the parties, often through conciliation.  A conciliation member will meet with the parties, privately and confidentially, to help them identify the issues in dispute, explore possible solutions, and reach a mutually acceptable outcome.
• Issue a Bargaining Order: If the FWC believes that one or more parties are not bargaining in good faith, it can issue a bargaining order. This order can compel a party to take specific actions, such as attending meetings, disclosing information, or refraining from unfair conduct.
• Make an Intractable Bargaining Declaration:  If the FWC determines that bargaining has broken down irretrievably, it can make an intractable bargaining declaration. This declaration is a precursor to the FWC potentially imposing a workplace determination.

3. Workplace Determination:

If bargaining remains intractable after a declaration, the FWC can make a workplace determination. This determination sets the wages and conditions for the employees covered by the proposed agreement.  It's a last resort option used when all other avenues for reaching agreement have been exhausted.

4. Protected Industrial Action (in some cases):

In certain circumstances, employees may be able to take protected industrial action to support their claims during bargaining.  However, strict rules govern protected industrial action, including requirements for a secret ballot and limitations on the type of action that can be taken.  Industrial action is not permitted in all circumstances and should be considered carefully.  It's important to note that industrial action is not available in all situations and must comply with strict legal requirements.

5. Agreement with Undertakings:

Sometimes, the FWC might approve an enterprise agreement with undertakings. This means the employer has voluntarily agreed to take certain actions to address concerns raised by the FWC during its review process.  This can be a way to resolve minor issues and avoid the agreement being rejected outright.

Key Considerations:

• Timeframes:  FWC processes, such as bargaining orders and intractable bargaining declarations, have specific timeframes and requirements that must be followed.
• Legal Advice:  Seeking legal advice is highly recommended if bargaining has broken down, especially before considering industrial action or applying to the FWC for assistance.

A breakdown in bargaining doesn't necessarily mean the end of the road.  By understanding the available options and seeking appropriate assistance, employers and employees can still work towards a resolution and a finalized enterprise agreement.

Bargaining representatives play a crucial role in the enterprise bargaining process. They act on behalf of either employees or employers, advocating for their interests and negotiating the terms and conditions of the proposed enterprise agreement.

Who Can Be a Bargaining Representative?

• For Employees: This is often a union official, but employees can also choose a fellow employee or another person to represent them.  Employees have the right to choose their own bargaining representative.
• For Employers: This is typically a manager, a human resources representative, or an external consultant specializing in workplace relations.  The employer chooses their bargaining representative.

Roles and Responsibilities of Employee Representatives:

• Represent Employee Interests:  The primary responsibility is to advocate for the interests of the employees in the bargaining group.  This includes presenting employee claims, negotiating with the employer, and ensuring a fair and equitable outcome.
• Consult with Employees:  Regularly communicate with employees throughout the bargaining process, keeping them informed of progress, seeking their feedback on proposals, and ensuring their views are represented in the negotiations.
• Bargain in Good Faith:  Adhere to the good faith bargaining requirements set out in the Fair Work Act 2009.  This includes attending meetings, disclosing relevant information, genuinely considering proposals, and refraining from capricious or unfair conduct.
• Explain the Agreement:  Once an agreement is reached, clearly explain the terms and conditions to employees and answer any questions they may have before the employee vote.

Roles and Responsibilities of Employer Representatives:

• Represent Employer Interests:  Advocate for the interests of the business, ensuring the proposed agreement aligns with its operational needs and financial capacity.
• Bargain in Good Faith:  Meet the good faith bargaining requirements, engaging constructively with employee representatives to reach a mutually acceptable agreement.
• Disclose Relevant Information:  Provide employee representatives with the information they need for bargaining, excluding confidential or commercially sensitive information.
• Explain the Agreement:  Ensure all employees covered by the proposed agreement understand its terms and conditions before they vote.
• Apply for FWC Approval:  Once the agreement is approved by employees, submit the application to the FWC for formal approval.

Shared Responsibilities (both employee and employer representatives):

• Attend Meetings:  Attend and actively participate in bargaining meetings.
• Develop and Exchange Proposals:  Work together to develop and exchange proposals aimed at reaching an agreement.
• Keep Records:  Maintain accurate records of the bargaining process, including meeting minutes and agreed-upon terms.
• Resolve Disputes:  Attempt to resolve any disputes that arise during bargaining through discussion, internal dispute resolution, or with the assistance of the FWC.

Importance of Effective Bargaining Representatives:

Skilled and effective bargaining representatives are essential for a successful enterprise bargaining process.  They can help facilitate constructive negotiations, resolve disputes, and achieve outcomes that benefit both employers and employees.  Choosing representatives who are knowledgeable about workplace relations and committed to good faith bargaining is crucial.

Industrial action, also known as industrial activity, refers to steps taken by employees or employers to express a disagreement or pursue claims during a workplace dispute.  In the context of enterprise bargaining, it's most often used by employees to pressure employers to agree to their claims.  The Fair Work Act 2009 sets out strict rules governing when and how industrial action can be taken.

What Constitutes Industrial Action?

Industrial action can take various forms, including:

• Strikes: Employees withdrawing their labor and refusing to work.
• Work Bans: Refusing to perform certain tasks or work with particular equipment.
• Work-to-Rule:  Strictly adhering to workplace rules and procedures, often slowing down work processes.
• Go-Slows: Deliberately reducing the pace of work.
• Lockouts: Employers preventing employees from entering the workplace.

When is Industrial Action Allowed During Enterprise Bargaining?

Industrial action during enterprise bargaining is only lawful if it's considered "protected industrial action."  This means it meets specific requirements:

1. Bargaining for a Proposed Enterprise Agreement: The action must be taken in support of claims related to a proposed enterprise agreement.
2. Not a Greenfields Agreement or Cooperative Workplace Agreement: Protected industrial action is not permitted during bargaining for Greenfields agreements (agreements for new enterprises) or cooperative workplace agreements.
3. Good Faith Bargaining: The bargaining representative taking the action must be genuinely trying to reach an agreement.
4. Notice Requirements:  Written notice of the proposed action must be given to the employer within specific timeframes.
5. Protected Action Ballot:  The action must be authorized by a secret ballot of the employees who will be taking the action.  The ballot must be conducted by an eligible protected action ballot agent and meet specific requirements for fairness and transparency.  A majority of employees who vote must approve the industrial action.
6. No Other Orders in Force:  The action must not be prohibited by any existing orders of the FWC, such as a suspension or termination order.
7. After Nominal Expiry Date: Industrial action cannot be taken before the nominal expiry date of the existing agreement.

What is Not Protected Industrial Action?

Industrial action that doesn't meet the above requirements is unlawful and can result in penalties.  Examples include:

• Unlawful Strikes: Strikes without a protected action ballot or outside the permitted timeframe.
• Unprotected Industrial Action: Any action that doesn't meet the requirements for protected industrial action.

Consequences of Unlawful Industrial Action:

Taking unlawful industrial action can have serious consequences, including:

• Legal Action: Employers can take legal action against employees or unions involved in unlawful industrial action.
• Penalties:  The FWC can impose penalties for unlawful industrial action.
• Dismissal: In some cases, employees who engage in unlawful industrial action may be dismissed.

The Role of the FWC:

The FWC plays a crucial role in regulating industrial action. It can:

• Suspend or Terminate Protected Industrial Action: In certain circumstances, such as if the action is causing significant economic harm or endangering public safety, the FWC can suspend or terminate protected industrial action.
• Deal with Disputes: The FWC can assist in resolving disputes related to industrial action.

Industrial action is a complex area of workplace relations law.  It's essential to understand the rules and regulations before taking any action.  Seeking advice from a workplace relations specialist is highly recommended.

Greenfields agreements are a special type of enterprise agreement that applies to new enterprises. They are made before any employees are hired and are designed to establish the terms and conditions of employment for the future workforce.

What is a Greenfields Agreement?

A Greenfields agreement is a specific type of enterprise agreement negotiated between an employer and a union(s) for a genuine new enterprise before any employees are employed.  It sets the ground rules for pay and conditions for the enterprise's future workforce.

When are Greenfields Agreements Used?

Greenfields agreements are typically used in situations where:

• New Enterprise: A completely new business is being established.
• No Existing Employees: The employer has not yet hired any employees for the new enterprise.
• Major Project: A large-scale project is being undertaken, requiring a new workforce with specific skills and expertise.

Who is Involved in Bargaining for a Greenfields Agreement?

• Employer: The employer establishing the new enterprise.
• Relevant Union(s):  The union(s) that are entitled to represent the industrial interests of the employees who will eventually be employed at the new enterprise.  The employer must bargain with the relevant union(s).

How is Bargaining for a Greenfields Agreement Different?

• No Employee Vote: Because there are no employees yet, there is no employee vote to approve the agreement.
• FWC Approval Based on Public Interest: The FWC's approval of a Greenfields agreement is based on whether it is in the public interest.  The FWC must also be satisfied that the agreement covers the appropriate relevant employee organisations.
• Pay and Conditions Consistent with Industry Standards: The FWC must be satisfied that the pay and conditions in the agreement are consistent with prevailing industry standards.
• Notified Negotiation Period: The employer can set a notified negotiation period of 6 months.  After this period, certain bargaining obligations, such as good faith bargaining requirements, no longer apply.

FWC Approval Requirements:

The FWC will approve a Greenfields agreement if:

• Relevant Union(s) Covered: The agreement covers the relevant union(s).
• Public Interest: Approving the agreement is in the public interest.
• Prevailing Pay and Conditions: The agreement provides pay and conditions consistent with the industry for equivalent work.

Benefits of Greenfields Agreements:

• Certainty and Stability:  Provides certainty and stability for the employer and the future workforce by establishing clear terms and conditions from the outset.
• Attracting Skilled Workers:  A competitive Greenfields agreement can help attract skilled workers to the new enterprise.
• Streamlined Process:  Avoids the need for an employee vote, potentially streamlining the bargaining process.

Limitations of Greenfields Agreements:

• Limited Employee Input:  Employees don't have direct input into the agreement's terms and conditions since they aren't employed yet.
• Potential for Disputes:  Disagreements between the employer and the union(s) can delay the establishment of the new enterprise.

Greenfields agreements offer a unique way to establish employment conditions for new enterprises.  Understanding the specific requirements and processes for Greenfields agreements is crucial for both employers and unions involved in establishing new businesses or projects.

Disputes can arise during enterprise bargaining, even with the best intentions.  The Fair Work Act 2009 provides a range of options for resolving these disputes, from informal discussions to formal intervention by the Fair Work Commission (FWC).

1. Workplace-Level Dispute Resolution:

Before escalating a dispute, it's always best to try and resolve it at the workplace level. This can involve:

• Direct Discussions: Bargaining representatives should continue discussions, clarify misunderstandings, and explore options for compromise.  Often, a simple conversation can clear up confusion and get negotiations back on track.
• Internal Dispute Resolution Procedures: Many organizations have established internal procedures for resolving workplace disputes. These procedures can provide a structured and confidential way to address the issues.

2. FWC Assistance:

If workplace-level attempts are unsuccessful, either bargaining representative can apply to the FWC for assistance. The FWC offers several dispute resolution services:

• Conciliation: A FWC conciliation member will work with the parties to help them reach a mutually acceptable agreement.  Conciliation is a confidential and informal process where the FWC member acts as a neutral facilitator, guiding the discussions and helping the parties find common ground.  The FWC cannot force the parties to make an agreement.
• Mediation (for certain matters): Similar to conciliation, mediation involves a neutral third party assisting the parties to reach a resolution.  However, mediation is generally used for less formal disputes or specific matters, as outlined in the legislation.
• Arbitration (in limited circumstances): In some cases, and only if all parties agree, the FWC can arbitrate a dispute.  Arbitration is a more formal process where the FWC hears evidence and makes a legally binding decision to resolve the dispute.  This decision is enforceable in the same way as an enterprise agreement.
• Bargaining Orders: If a party is not bargaining in good faith, the FWC can issue a bargaining order. This order can compel the party to take specific actions, such as attending meetings or disclosing information.
• Dealing with Disputes about the Agreement: The FWC can deal with disputes relating to the terms of the proposed agreement, the better off overall test (BOOT), or other related matters.

3. Other Resources and Support:

Several other resources can help parties resolve bargaining disputes:

• Fair Work Ombudsman: The Fair Work Ombudsman provides information and advice on workplace rights and obligations, including enterprise bargaining.
• Registered Organizations: Unions and employer associations can provide support and guidance to their members during bargaining.
• Legal Professionals:  Workplace relations lawyers can provide expert legal advice and representation.

Choosing the Right Dispute Resolution Option:

The most appropriate dispute resolution option will depend on the nature of the dispute, the relationship between the parties, and the stage of the bargaining process.  Starting with informal discussions is always recommended, escalating to more formal processes like FWC conciliation or arbitration if necessary.

Preventing Disputes:

While disputes can be a normal part of bargaining, taking proactive steps can help minimize their occurrence:

• Good Faith Bargaining:  Committing to good faith bargaining from the outset can help build trust and prevent disagreements from escalating.
• Clear Communication:  Open and transparent communication between the parties can help avoid misunderstandings.
• Early Intervention: Addressing issues as they arise, rather than letting them fester, can prevent them from becoming major disputes.

By understanding the available options and resources, and by focusing on proactive communication and good faith bargaining, parties can effectively manage disputes and work towards a successful outcome in enterprise bargaining.

The information provided in these FAQs is based on the Fair Work Act 2009.  Here's a quick reference guide to the most relevant sections of the Act for each FAQ:

• What is Enterprise Bargaining?
  • Part 2-4 (Enterprise Agreements): This part of the Act outlines the entire process for making, approving, and varying enterprise agreements.  Specifically, Section 172 details how enterprise agreements are made.
• Why is Enterprise Bargaining Important?
  • Section 3 (Object of this Act): This section sets out the overall objectives of the Fair Work Act, including promoting fair and productive workplace relations.
  • Section 171 (Objects of this Part): This outlines the specific objectives of the enterprise bargaining provisions, such as providing a framework for collective bargaining and enabling the FWC to facilitate agreements.
• Who is Involved in Enterprise Bargaining?
  • Sections 176 & 177 (Bargaining Representatives): These sections define who can be a bargaining representative for employees and employers.
  • Part 5-1 (The Fair Work Commission): This part establishes the FWC and outlines its role in the bargaining process.
• How Long Does the Enterprise Bargaining Process Take?
  • Part 2-4 (Enterprise Agreements):  While no specific timeframe is given, this part outlines the steps involved, which can help estimate the duration.  Specifically, Section 185 details the timeframe for applying for FWC approval.
• Getting Started: Initiating the Bargaining Process
  • Section 173 (Notice of Employee Representational Rights): This section outlines the employer's obligation to notify employees of their representational rights.
  • Sections 176 & 177 (Bargaining Representatives):  These sections define bargaining representatives.
  • Section 180 (Pre-approval steps): This section outlines the steps required before requesting employees to approve a proposed agreement.
• Reaching Agreement: What Happens When We Agree?
  • Section 181 (Employers may request employees to approve a proposed enterprise agreement): This section covers the process for the employee vote.
  • Section 185 (Bargaining representative must apply for the FWC's approval): This section outlines the application process for FWC approval.
  • Sections 186 & 187 (When the FWC must approve an enterprise agreement): These sections detail the FWC's approval criteria.
• Approval and Registration: Making the Agreement Official
  • Sections 185, 186, & 187 (Approval of Enterprise Agreements): These sections cover the application process and the FWC's approval criteria.
• Understanding Good Faith Bargaining
  • Section 228 (Bargaining representatives must meet the good faith bargaining requirements): This section defines the good faith bargaining requirements.
  • Section 229 & 230 (Applications for and Making of Bargaining Orders): These sections outline the process for seeking FWC assistance when good faith bargaining isn't occurring.
• What are Permitted Matters in Bargaining?
  • Section 172 (Making an enterprise agreement): This section defines permitted matters.
• The Better Off Overall Test (BOOT) Explained
  • Section 193 (Passing the better off overall test): This section outlines the BOOT.
• What is an Intractable Bargaining Declaration?
  • Sections 234 & 235 (Intractable Bargaining Declarations): These sections cover the process for declaring bargaining intractable.
  • Part 2-5 (Workplace Determinations): This part outlines the process for making workplace determinations, including those made after an intractable bargaining declaration.
• What Happens if Bargaining Breaks Down?
  • Division 8 of Part 2-4 (FWC's general role in facilitating bargaining): This division outlines the FWC's powers to assist in resolving bargaining disputes.
• Bargaining Representatives: Roles and Responsibilities
  • Sections 176 & 177 (Bargaining Representatives): These sections define bargaining representatives.
  • Section 228 (Good faith bargaining requirements): This section outlines the obligations of bargaining representatives.
• Industrial Action: What is it and When is it Allowed?
  • Part 3-3 (Industrial Action): This part of the Act covers all aspects of industrial action, including protected industrial action and unlawful industrial action.  Specifically, Division 8 details the requirements for protected action ballots.
• Single vs. Multi-Enterprise Agreements
  • Section 172 (Making an enterprise agreement): This section defines single and multi-enterprise agreements.
  • Division 9 of Part 2-4 (Supported bargaining): This division outlines the requirements for supported bargaining authorizations for multi-enterprise agreements.
• Greenfields Agreements: Bargaining for New Enterprises
  • Subsection 172(4) (Greenfields agreements): This subsection defines Greenfields agreements.
  • Section 187 (When the FWC must approve an enterprise agreement - additional requirements):  This section includes specific requirements for FWC approval of Greenfields agreements.

This is not an exhaustive list, and other sections of the Act may be relevant depending on the specific circumstances of the bargaining process.  It's always recommended to refer to the full text of the Fair Work Act 2009 for complete and up-to-date information.  You can access the Act on the Federal Register of Legislation website.

Creating an enterprise agreement might seem daunting, but it's a structured process. While legal advice is always recommended, understanding the basic components of an agreement can demystify the process.  This FAQ provides a simplified template and explanation, not a legally compliant document.

Key Parts of an Enterprise Agreement Template:

1. Agreement Title and Coverage:
   • Clearly state the name of the agreement (e.g., "[Company Name] Enterprise Agreement 2024").
   • Define which employers and employees are covered. Be specific about job classifications, locations, or other relevant criteria.
2. Nominal Expiry Date:
   • Specify the date the agreement will nominally expire (maximum four years from the approval date).
3. Parties to the Agreement:
   • List the names and details of the employers and employee organizations (if any) involved in the agreement.
4. Statement of Principles:
   • Include a statement acknowledging good faith bargaining and commitment to positive workplace relations.
5. Definitions:
   • Define any key terms used in the agreement to avoid ambiguity.  For example, define "ordinary hours," "overtime," or specific job roles.
6. Pay Rates and Classifications:
   • Outline the pay rates for each classification of employee covered by the agreement.  This should include base rates, allowances, loadings, and penalty rates.  Ensure these rates are higher than those in the relevant award to meet the BOOT.
7. Hours of Work:
   • Detail ordinary hours of work, rostering arrangements, overtime provisions, and breaks.
8. Leave Entitlements:
   • Specify entitlements for various types of leave, including annual leave, personal/carer's leave, long service leave, parental leave, and any other agreed-upon leave.
9. Superannuation:
   • Outline superannuation contributions, including any contributions above the statutory minimum.
10. Consultation and Dispute Resolution:

• Describe the procedures for consultation between the employer and employees on workplace matters.
• Include a dispute resolution clause outlining the process for resolving disagreements, typically involving a tiered approach starting with informal discussions and escalating to external mediation or arbitration if necessary.  This clause is mandatory.

1. Flexibility Term:

• Include a flexibility term that allows for individual flexibility arrangements (IFAs) between the employer and individual employees.  This term is mandatory and must meet specific requirements outlined in the Fair Work Act.

1. Other Terms and Conditions:

• Include any other agreed-upon terms and conditions, such as those relating to allowances, training, or workplace policies.

1. Signatories:

• Provide space for signatures of the bargaining representatives for both the employer and employees.

Important Considerations:

• Legal Compliance: This template is for explanatory purposes only.  A legally compliant enterprise agreement must meet all requirements of the Fair Work Act.  Seeking legal advice is crucial.
• Tailoring the Agreement:  The template should be adapted to suit the specific needs and circumstances of the workplace.
• Consultation:  Throughout the drafting process, consult with employees and their representatives to ensure the agreement reflects their views and preferences.

This simplified template provides a starting point for understanding the structure and content of an enterprise agreement.  However, it's not a substitute for professional legal advice.  Always consult with a workplace relations specialist to ensure your agreement is legally sound and meets the needs of your workplace.

Enterprise bargaining involves specific terminology that can be confusing for newcomers. This glossary defines some key terms used throughout these FAQs and in the enterprise bargaining process:

• Award: A legally enforceable document that sets out minimum wages and conditions for employees in a specific industry or occupation.

• Bargaining in Good Faith: A legal requirement for all bargaining representatives to approach negotiations with a genuine intention to reach an agreement. See Section 228 of the Fair Work Act.

• Bargaining Order: An order issued by the FWC compelling a bargaining representative to meet the good faith bargaining requirements.

• Bargaining Representative: A person or organization authorized to represent either employees or employers in the enterprise bargaining process.

• Better Off Overall Test (BOOT): The assessment conducted by the FWC to ensure every employee covered by a proposed enterprise agreement is better off overall than under the relevant award.

• Casual Employee: An employee engaged on an irregular basis, typically without a firm advance commitment to continuing and indefinite work, and entitled to a casual loading.

• Collective Bargaining: Negotiations between an employer and a group of employees (or their representatives) to determine wages and conditions.

• Conciliation: A dispute resolution process where a neutral third party (a FWC conciliation member) helps the parties reach an agreement.

• Consultation Term: A mandatory term in an enterprise agreement outlining the procedures for consultation between the employer and employees on workplace matters.

• Enterprise Agreement: A legally binding agreement between an employer and their employees that sets out wages and conditions of employment.

• Fair Work Commission (FWC): Australia's independent workplace relations tribunal, responsible for approving enterprise agreements and resolving disputes.

• Fair Work Ombudsman: A government agency that provides information and advice on workplace rights and obligations, investigates breaches of workplace laws, and enforces compliance.

• Flexibility Term: A mandatory term in an enterprise agreement that allows for individual flexibility arrangements (IFAs).

• Full-time Employee: An employee engaged to work a standard number of hours per week, typically 38 hours.

• Genuine Redundancy: A redundancy that occurs when an employer no longer requires a job to be performed by anyone due to changes in operational requirements, and where redeployment is not reasonable.

• Greenfields Agreement: An enterprise agreement made for a new enterprise before any employees are hired.

• Individual Flexibility Arrangement (IFA): An agreement between an employer and an individual employee that varies the terms of the enterprise agreement to meet their specific needs.

• Industrial Action: Steps taken by employees or employers to pursue claims or express a disagreement during a workplace dispute. See Part 3-3 of the Fair Work Act.

• Intractable Bargaining Declaration: A declaration by the FWC that enterprise bargaining has reached a deadlock.

• Lockout: Action taken by an employer to prevent employees from working.

• Mediation: A dispute resolution process where a neutral third party helps the parties reach an agreement.

• Modern Award: An industry or occupation-based minimum set of terms and conditions.

• Multi-Enterprise Agreement: An enterprise agreement that covers two or more unrelated employers.

• National Employment Standards (NES): 10 minimum entitlements for employees in Australia, forming a safety net.

• Nominal Expiry Date: The date specified in an enterprise agreement as the date it is intended to expire.

• Part-time Employee: An employee engaged to work a regular number of hours per week, less than the standard full-time hours.

• Pay Slip: A document provided to employees that details their pay and deductions.

• Permitted Matters: The allowable subjects for inclusion in an enterprise agreement.

• Protected Action Ballot: A secret ballot required before employees can take protected industrial action.

• Protected Industrial Action: Industrial action that meets the legal requirements and is protected from certain legal consequences.

• Redundancy Pay: A payment made to employees whose employment is terminated due to genuine redundancy.

• Regular Casual Employee: A casual employee who has been employed on a regular and systematic basis.

• Resignation: An employee voluntarily leaving their employment.

• Right of Entry: The right of union officials to enter a workplace for specific purposes, such as investigating suspected breaches of the agreement or holding discussions with members. See Part 3-4 of the Fair Work Act.

• Serious Misconduct: Conduct that is sufficiently serious to justify immediate dismissal, such as theft or violence.

• Single-Enterprise Agreement: An enterprise agreement that covers a single employer and their employees.

• Small Business Employer: An employer with fewer than 15 employees.

• Strike: Employees withdrawing their labor and refusing to work.

• Supported Bargaining Authorisation: An authorization granted by the FWC for multi-enterprise bargaining to proceed.

• Termination: The ending of an employee's employment.

• Unfair Dismissal: Dismissal of an employee that the FWC deems to be harsh, unjust, or unreasonable.

• Workplace Determination: A legally binding document made by the FWC that sets wages and conditions when an enterprise agreement cannot be reached.

• Workplace Right: A right an employee has under workplace laws or a workplace instrument.

This glossary is not exhaustive, but it covers many of the key terms used in enterprise bargaining. For a complete understanding of these and other terms, refer to the Fair Work Act 2009 and the Fair Work Ombudsman website.