From 6 June 2023, we must consider the Statement of principles in deciding whether we are satisfied that an enterprise agreement has been genuinely agreed to by employees covered by the agreement.
The Statement of Principles on Genuine Agreement only applies to enterprise agreements where your notification time is on or after 6 June 2023. If bargaining for your enterprise agreement started before 6 June 2023, you will need to follow the previous pre-approval requirements.
We must consider the Statement of Principles on Genuine Agreement in deciding whether we are certain that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.
The Statement of principles guides employers so they can ensure employees have genuinely agreed to an agreement and includes the following:
- informing employees of bargaining for the agreement and their right to be represented
- providing employees with a reasonable opportunity to consider the proposed agreement
- explaining the terms of the agreement, and their effect, to the relevant employees
- providing employees with a reasonable opportunity to vote on the proposed agreement, including by informing employees of the time, place and method for the vote.
The Statement of principles is relevant when you are applying for approval of:
- a proposed enterprise agreement (other than a greenfields agreement)
- a proposed variation of an enterprise agreement
- a variation to add employers or employees to a multi-enterprise agreement
To determine whether an agreement has been genuinely agreed, we must also consider:
- whether employees who have been asked to vote have sufficient interest in the terms of the agreement and sufficiently represent the employees the agreement will cover,
- for a proposed multi-enterprise agreement (or a variation of a multi-enterprise agreement) – an employer must get written approval from all relevant employee organisations or a voting request order before asking their employees to vote,
- whether an employer has taken all reasonable steps to give a notice of employee representational rights (NERR) to employees (if required). The employer must not request that employees vote for an agreement until at least 21 days after the day on which the last NERR is given.
See section 188 and section 188B of the Fair Work Act 2009.