Bargaining is the process by which one or more employers and employees negotiate the terms and conditions which will be included in an agreement.
Either side may be represented in the process by a bargaining representative.
Bargaining on a proposed enterprise agreement begins when the employer agrees to bargaining or initiates bargaining, or when a majority support determination comes into operation, or a scope order comes into operation or a low-paid authorisation that specifies the employer comes into operation. This is known as the notification time.
The employer must take all reasonable steps to notify employees of the right to be represented as soon as practicable, and not later than 14 days, after the notification time.
The notice is given by providing employees with an exact copy of the Notice of employee representative rights provided in Schedule 2.1 of the Fair Work Regulations 2009. The notice cannot contain any other content.
The notice should be given to each employee who will be covered by the agreement and who is employed at the notification time.
If a new person is employed after the notification time and the notice has already been provided, then the new person does not need to be given the notice.
Note: A vote cannot occur until at least 21 days after the last Notice of representative rights has been given.
This does not apply to a greenfields agreement as those employees to be covered by the agreement have not yet been employed.
A recent amendment to the Fair Work Regulations 2009 (the Regulations) will affect the Notice of Employee Representational Rights (the Notice) which is used during bargaining for an Enterprise Agreement.
The amendment to the Regulations commences on 3 April 2017 and will affect the form and content of the Notice issued to employees. The change to the Regulations will only affect parties who issue the Notice from 3 April 2017 onward (post 3 April 2017 Notice).
Please note: any Notices issued to employees before 3 April 2017 (pre 3 April 2017 Notice) must comply with the current legislation, and there is no capacity to depart from the template currently prescribed in the Regulations.
Any Notices issued on or after 3 April 2017 must comply with the updated amendments. The use of the pre 3 April 2017 Notice template on or after 3 April 2017 onward may result in the Commission finding the Notice to be invalid.
Once the changes are in effect, the updated Notice will be available from this page.
You are required to provide your employees with a document called the Notice of Employee Representational Rights (the Notice) no more than 14 days after you decide to commence bargaining.
You decide to commence bargaining on 2 April 2017.
If you give your employees the Notice on 2 April 2017 you must provide the pre 3 April 2017 Notice. Alternatively, if you choose to provide the notice to employees on or after 3 April 2017 the pre 3 April 2017 Notice will be invalid and you will need to give employees the post 3 April 2017 Notice in schedule 2.1 of the Fair Work Regulations 2009.
The Notice to be used from 3 April 2017 onwards will be published on this page when it becomes available.
The following are bargaining representatives:
Those involved in the bargaining process, including bargaining representatives, are required to bargain in good faith.
The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
The good faith bargaining requirements do not require a bargaining representative to:
If a majority of employees want to bargain with the employer to make a new agreement under the terms of the Fair Work Act 2009 (the Act) and the employer refuses, a bargaining representative for the employees can apply to the Fair Work Commission for a majority support determination under s.236 of the Act.
If the Commission makes this determination the employer is required to bargain with their employees to make a new agreement.
Use Form F30, which can be found on our Forms page