Once bargaining is complete and a proposed agreement has been made, certain steps must be taken to make sure the agreement can be approved by the Fair Work Commission.
The employer must take all reasonable steps to ensure that:
A majority of employees employed at the time who will be covered by the proposed agreement must approve the agreement by voting for it.
A vote must not occur until at least 21 days after the last day on which employees were given notice of their representational rights (see the Enterprise bargaining page).
The employer must take all reasonable steps to ensure that during the 7 day access period employees employed at the time who will be covered by the agreement are given a copy of the following materials:
the relevant employees have access throughout the 7 day access period to a copy of those materials.
The employer must take all reasonable steps to ensure that by the start of the 7 day access period the relevant employees have been notified of:
The agreement is made when:
Agreements may contain terms about:
Agreements should not include any unlawful content. This includes:
Agreements approved by the Commission on or after 1 January 2014 cannot include a term that requires superannuation contributions for default fund employees to be made to a superannuation fund, unless that fund:
Note: this requirement applies to all agreements approved on or after 1 January 2014, including those lodged before 1 January 2014.
Once an enterprise agreement is made, a bargaining representative for the agreement must apply to the Commission for approval of the agreement using Form F16 – Application for approval of enterprise agreement, which can be found on our Forms page.
The application must be lodged with the Commission within 14 days of the agreement being made or within such further period as the Commission allows.
The application must be accompanied by:
Completed applications can be lodged:
Organisations not listed as bargaining representatives in the application (Form F16) can request access to enterprise agreement application approval documentation.
When an organisation is given access to application documentation it does not follow that the organisation is, or becomes a party to the application. Nor does it follow that the organisation has thereby obtained a right to be heard or to make submissions in relation to the application.
Unless an organisation is able to establish that it was a bargaining representative for the agreement, or that it has been given a right to be heard or to make a submission, an organisation will not be included in any correspondence, including notification of the Commission’s intention to determine the application, unless contacted by the presiding Member and advised otherwise.
To approve an enterprise agreement, the Commission must be satisfied that:
Before approving an enterprise agreement, the Commission must ensure the agreement passes the better off overall test.
This test requires that each of the employees to be covered by the agreement are better off overall than under the relevant modern award.
The better off overall test is outlined in s.193 of the Fair Work Act 2009.
The Commission may approve an enterprise agreement that may not meet certain requirements of the Fair Work Act 2009 if satisfied that a written undertaking meets the concern.
The Commission may only accept a written undertaking from an employer, after seeking the views of each bargaining representative and if satisfied that the effect of accepting the undertaking is not likely to:
When the Commission approves the agreement it will issue a decision with the approved agreement and any undertakings accepted by it attached. A copy will be sent to all the parties involved, and the decision and agreement will be published on our website.
Organisations should refer to the Agreements in progress page on the Commission’s website for information on current agreement approval applications. Note that if no person contacts the Commission wishing to be heard, applications may be approved or refused no earlier than 7 business days from the date that the application was lodged.