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  • Job loss or dismissal
    • Types of dismissal and termination
    • Unfair dismissal
      • About unfair dismissal
        • What is unfair dismissal?
        • Who the law protects from unfair dismissal
        • Check eligibility for unfair dismissal
      • The rules for small business owners
      • The process for unfair dismissal claims
      • Apply for unfair dismissal (Form F2)
        • Check you are ready to apply for unfair dismissal
      • Respond to an unfair dismissal claim
        • What to do when an employee claims unfair dismissal
        • Respond to a claim for unfair dismissal (Form F3)
          • Help with Form F3 – Employer response to unfair dismissal
        • Object to an unfair dismissal claim
          • Object to an application for unfair dismissal remedy (Form F4)
          • Jurisdiction hearings in unfair dismissal cases
      • Conciliation for unfair dismissal
        • What is conciliation?
        • Tips to prepare for conciliation
        • What happens in a conciliation meeting
        • Options at conciliation for unfair dismissal
        • The role of the independent conciliator
        • Ask to delay a conciliation
      • Withdraw your application for unfair dismissal
      • Possible results of unfair dismissal claims
        • Compensation for unfair dismissal
          • The formula to calculate compensation
        • Reinstatement after unfair dismissal
        • Outcomes or remedies at an unfair dismissal hearing
    • Dismissal under general protections
      • About general protections
        • Understand general protections
        • Who the general protections laws cover
          • The difference between contractors and employees
        • Check eligibility for general protections
        • What is adverse action?
        • Prohibited reasons in general protections
        • Other workplace protections
      • The process for general protections dismissal
      • Apply for general protections – dismissal (Form F8)
      • Responding to a general protections claim
        • Response to general protections application (Form F8A)
        • Object to a general protections dismissal claim
      • Conferences for general protections dismissal
        • Tips to prepare for a general protections conference
      • Possible outcomes of a general protections – dismissal case
      • Apply for arbitration of a general protections – dismissal case (Form F8B)
      • Take your general protections case to court
    • Unlawful termination
      • Apply for help with unlawful termination (Form F9)
      • Respond to an application for unlawful termination (Form F9A)
      • Agree to arbitration for unlawful termination (Form F9B)
    • Redundancy
    • Respond to a claim against a business
  • Issues we help with
    • Common issues in the workplace
      • Resolve a dispute in your workplace
      • Apply for help to promote cooperative workplaces and prevent disputes (Form F79)
    • Bullying
      • The process to resolve workplace bullying
      • What is bullying at work?
        • About reasonable management action
      • What to do if you’re bullied at work
        • How we help stop workplace bullying
        • Who can apply to stop bullying
          • Check eligibility for an order to stop bullying
        • Apply to stop workplace bullying (Form F72)
      • Respond to a bullying claim
        • Respond as an employer or principal in a bullying application (Form F73)
        • Respond as a person named in a bullying application (Form F74)
      • Conciliation for bullying at work
        • Prepare for a conciliation session
    • Sexual harassment
      • What is sexual harassment at work
      • Who can apply for orders to stop sexual harassment at work
      • Discrimination, the general protections and work health and safety
      • What to do if you’re sexually harassed at work
      • The Commission’s process to resolve sexual harassment at work
      • Apply to stop sexual harassment at work
      • Respond to an application about sexual harassment at work
      • Conciliation about sexual harassment at work
      • Conferences and hearings about sexual harassment at work
    • Discrimination
    • Help for small business owners
      • What we are doing to help small business
    • Casual to permanent status
      • Apply to resolve a dispute about casual conversion (Form F10A)
    • Dispute about an award or agreement
      • Apply to resolve a dispute about an award or agreement (Form F10)
    • Disputes about general protections
      • Process for general protection disputes
      • Apply for general protections – no dismissal (Form F8C)
      • Responding to a general protections claim not involving dismissal
    • Industrial action
      • Organise a protected action ballot
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
      • Types of industrial action
      • Payments during industrial action
      • Ballot results
      • Apply to resolve a stand down dispute (Form F13)
      • Apply to stop unprotected industrial action (Form F14)
    • Cooperative Workplaces program
      • Interest-based approaches
      • Interest-based bargaining
      • Interest-based consultation
      • Interest-based problem-solving
    • Jobkeeper disputes
      • Apply to resolve a jobkeeper dispute (Form F13A)
  • Agreements & awards
    • Enterprise agreements
      • Find an enterprise agreement
        • Agreements in progress
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Timeframes to make an agreement
          • Date calculator for single enterprise agreement
          • Plan to communicate your agreement
          • Bargaining representatives
            • Who can be a bargaining representative?
            • The role of representatives
            • Cancel a bargaining representative
          • Apply for a majority support determination (Form F30)
          • Request to bargain for a replacement agreement
        • Start bargaining
          • Scope orders for enterprise agreements
            • Apply for a scope order (Form F31)
          • Resolve a dispute about bargaining
            • Apply to resolve a bargaining dispute (Form F11)
            • Apply for a bargaining order (Form F32)
            • Apply for a serious breach declaration (Form F33)
          • How to bargain in good faith
          • NERR – Notice of Employee Representational Rights
            • Create the NERR
            • Distribute the NERR to employees
        • Develop the agreement
          • Finalise the draft enterprise agreement
          • Guide to the BOOT
            • How we apply the Better Off Overall Test
            • Check an agreement can pass the BOOT
          • Terms and dates to put in an agreement
          • When employees genuinely agree to an agreement
          • Avoid common errors in agreements
            • Meet the terms in the NES
            • Sign an agreement the right way
            • Make sure your NERR is valid
            • Make 'loaded' rates clear
            • Explain what you did in the access period
            • Ways to pass the BOOT
        • Hold a vote on the agreement
          • Explain the agreement to employees
          • What to give employees during the 'access period'
          • Voting process for agreements
          • Record how and when employees vote
        • Create a greenfields enterprise agreement
          • Apply to approve a greenfields agreement (Form F19)
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
        • Union declaration for variation of an enterprise agreement (Form F23B)
        • Apply to vary an agreement to resolve a casual conversion issue (Form F23C)
        • Apply to terminate an agreement after the nominal expiry date (Form F24B)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Approval timelines for agreements
        • Is your agreement application ready to lodge?
        • Forms for approval of agreements
          • Apply to approve a new enterprise agreement (Form F16)
          • Employer declaration for an enterprise agreement (Form F17)
          • Union declaration for an enterprise agreement (Form F18)
          • Employee rep declaration for an agreement (Form F18A)
          • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
          • Union declaration for a greenfields agreement (Form F21)
          • Apply to approve a new greenfields agreement made under s.182(4) (Form F21A)
          • Employer's declaration for a greenfields agreement under s.182(4) (Form F21B)
          • Union declaration for approval for a greenfields agreement under s.182(4) (Form F21C)
      • Terminate an enterprise agreement
        • Apply to terminate an enterprise agreement by agreement (Form F24)
        • Ways to terminate an individual agreement (IABTI)
        • Declaration to support the termination of an agreement (Form F24A)
        • Declaration to support the termination of an agreement after nominal expiry (Form F24C)
        • Declaration in response to application to terminate an agreement after the expiry date (Form F24D)
      • Sunsetting of zombie agreements
        • What to do if I have a zombie agreement
        • What will happen to my zombie agreement
        • Extending a zombie agreement
    • Awards
      • Find an award
      • Create or change an award
        • Applications to create or change an award
        • Apply to create, change or revoke an award (Form F46)
      • Modern awards pay database
        • Data dictionary
      • What awards contain
      • The difference between awards and agreements
      • Awards research
    • Minimum wages and conditions
      • The national minimum wage
        • National minimum wage orders
      • National Employment Standards
      • Where to find your pay and conditions
      • Superannuation
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
        • Annual Wage Review 2021–22
          • Additional material for the Annual Wage Review 2021–22
          • Correspondence for the Annual Wage Review 2021–22
          • Decisions & statements for the Annual Wage Review 2021–22
          • Determinations for the Annual Wage Review 2021–22
          • Draft determinations for the Annual Wage Review 2021–22
          • National Minimum Wage Order 2022
          • Notices of listing for the Annual Wage Review 2021–22
          • Research for the Annual Wage Review 2021–22
          • Statistical reporting for the Annual Wage Review 2021–22
          • Submissions for the Annual Wage Review 2021–22
          • Timetable for the Annual Wage Review 2021–22
          • Transcripts for the Annual Wage Review 2021–22
        • Annual Wage Review 2020–21
          • Additional material for the Annual Wage Review 2020–21
          • Consultations for the Annual Wage Review 2020–21
          • Correspondence for the Annual Wage Review 2020–21
          • Decisions & statements for the Annual Wage Review 2020–21
          • Determinations for the Annual Wage Review 2020–21
          • Draft determinations for the Annual Wage Review 2020–21
          • National Minimum Wage Order 2021
          • Notices of listing for the Annual Wage Review 2020–21
          • Research for the Annual Wage Review 2020–21
          • Statistical reporting for the Annual Wage Review 2020–21
          • Submissions for the Annual Wage Review 2020–21
            • Initial submissions for the Annual Wage Review 2020–21
            • Post-budget submissions for the Annual Wage Review 2020–21
            • Submissions in reply for the Annual Wage Review 2020–21
            • Supplementary submissions for the Annual Wage Review 2020–21
          • Timetable for the Annual Wage Review 2020–21
          • Transcripts for the Annual Wage Review 2020–21
        • Annual Wage Review 2019–20
          • Additional material for the Annual Wage Review 2019-20
          • Consultations for the Annual Wage Review 2019-20
          • Correspondence for the Annual Wage Review 2019-20
          • Decisions & statements for the Annual Wage Review 2019-20
          • Determinations for the Annual Wage Review 2019-20
          • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
          • National Minimum Wage Order 2020
          • Notices of listing for the Annual Wage Review 2019-20
          • Research for the Annual Wage Review 2019-20
          • Research proposals for the Annual Wage Review 2019-20
          • Statistical reporting for the Annual Wage Review 2019-20
          • Submissions for the Annual Wage Review 2019-20
            • Initial submissions for the Annual Wage Review 2019-20
            • Submissions in reply for the Annual Wage Review 2019-20
            • Supplementary submissions for the Annual Wage Review 2019-20
          • Timetable for the Annual Wage Review 2019-20
          • Transcripts for the Annual Wage Review 2019-20
        • Annual Wage Review 2018–19
          • Additional material for the Annual Wage Review 2018-19
          • Consultations for the Annual Wage Review 2018-19
          • Correspondence for the Annual Wage Review 2018-19
          • Decisions & statements for the Annual Wage Review 2018-19
          • Determinations for the Annual Wage Review 2018-19
          • National Minimum Wage Order 2019
          • Notices of listing for the Annual Wage Review 2018-19
          • Research for the Annual Wage Review 2018-19
          • Statistical reporting for the Annual Wage Review 2018-19
          • Submissions for the Annual Wage Review 2018-19
            • Initial submissions for the Annual Wage Review 2018-19
            • Submissions in reply for the Annual Wage Review 2018-19
          • Timetable for the Annual Wage Review 2018-19
          • Transcripts for the Annual Wage Review 2018-19
        • Annual wage reviews archive
          • Annual Wage Review 2012–13
      • Application to terminate the Apple Retail Enterprise Agreement 2014
      • Award flexibility – Hospitality and retail sectors
        • Application to vary the Hospitality Award
        • Application to vary the Restaurant Award
        • Application to vary the Retail Award
        • Background material
        • Correspondence
        • Decisions and statements
        • Notices of listing and directions
        • Research and data
        • Submissions
        • Transcript
      • Ballot for withdrawal of ME Division from CFMMEU
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Family and domestic violence leave review
        • Decisions & statements
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • Svitzer Australia Pty Limited industrial action
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
        • Ballot for withdrawal of ME Division from CFMMEU
        • Casual terms award review 2021
          • Background material
          • Correspondence
          • Decisions & statements
          • Determinations
          • Notices of listing & directions
          • Submissions
          • Transcripts
          • All documents
        • Clerks – Private Sector Award – Work from home case
        • Equal Remuneration Case 2010-12
          • Applications
          • Correspondence
          • Decisions & statements
          • Draft orders
          • Exhibits
          • Notices of listing
          • Site Inspections
          • Submissions
          • Timetable
          • Transcripts
        • Equal Remuneration and Work Value Case
          • Applications
          • Correspondence
          • Decisions and statements
          • Legislation
          • Notices of listing and directions
          • Orders
          • Papers
          • Submissions
          • Timetable
          • Transcript
        • Health sector awards – pandemic leave case
          • Applications
          • Correspondence
          • Decisions and statements
          • Determinations
          • Information notes and articles
          • Notices of listing and directions
          • Orders
          • Submissions and witness statements
          • Transcript
        • Modern awards review 2012
          • Awards reviewed 2012
        • Undergraduate qualifications review
    • Case law benchbooks
      • Anti-bullying benchbook
        • Overview of benchbook
        • What is workplace bullying?
        • Who is covered?
          • Definition of ‘worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking?
            • What is a Territory or a Commonwealth place?
            • What is a constitutional corporation?
            • What is the Commonwealth?
        • When is a worker bullied at work?
          • What does ‘at work’ mean?
          • Risk of continued bullying
          • What does ‘Reasonable management action’ mean?
        • Making an application
        • Responding to an application
        • What if the worker has been dismissed etc
        • Commission processes
          • Procedural issues
          • Representation by lawyers and paid agents
        • Evidence
        • What are the outcomes?
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
          • Appeals
          • Role of the Court
      • Enterprise agreements benchbook
        • Overview of benchbook
        • What is an enterprise agreement?
          • Single-enterprise agreement
          • Multi-enterprise agreement
          • Differences between single and multi-enterprise agreements
          • Greenfields agreement
        • Content of an enterprise agreement
          • Permitted matters
          • Coverage
          • Scope – who will be covered?
          • Terms & conditions of employment
          • Base rate of pay
          • Nominal expiry date
          • Mandatory terms
          • Flexibility term
          • Consultation term
          • Dispute settlement term
          • Optional terms
          • Terms that cannot be included
            • Terms that exclude the NES
            • Unlawful terms
            • Designated outworker terms
        • Agreement making process
          • Representation
          • Employees must be notified of their right to be represented
          • Bargaining representatives
        • Bargaining
          • Good faith bargaining
          • How long does bargaining take?
        • Voting
          • Voting process
          • Who can vote?
          • Timeframe for vote
          • Voting methods
          • When is an agreement made?
        • What happens if the parties cannot agree?
        • Making an application
          • Common defects & issues
            • National Employment Standards – common defects & issues
            • Better off overall test – common defects & issues
            • Mandatory terms – common defects & issues
            • Other terms of the agreement
            • Pre-approval requirements – common issues
            • Forms & lodgment – common defects & issues
          • Who must apply
          • Timeframe to apply – within 14 days
          • Material to accompany application
          • Signing an agreement
          • Employer must notify employees
        • Commission approval process
          • Genuine agreement
            • Minor procedural or technical errors
          • Where a scope order is in operation
          • Particular kinds of employees
          • Better off overall test (BOOT)
            • When an agreement passes
            • Classes of employees
            • Which award applies
            • Advice about coverage
            • Loaded rates of pay
          • Public interest test
          • Undertakings
          • Powers of the Commission
        • Associated applications
          • Majority support determinations
          • Authorisations to commence bargaining
            • Single interest employer authorisations
            • Ministerial declaration
            • Low-paid authorisations
          • Scope orders
          • Bargaining orders
          • Serious breach declarations
          • Disputes
          • Workplace determinations
            • Low-paid workplace determinations
            • Industrial action related workplace determinations
            • Bargaining related workplace determinations
          • Role of the Court
          • Appeals
          • Varying enterprise agreements
            • Varying by agreement
            • Ambiguity or uncertainty
            • Casual employee definition and casual conversion provisions
            • Discrimination
          • Terminating enterprise agreements
            • Terminating by agreement
            • After its nominal expiry date
          • Terminating individual agreements
      • General protections benchbook
        • Overview of benchbook
          • When is a person covered by the general protections?
        • What are the general protections?
        • How do the general protections work?
          • Rebuttable presumption as to reason or intent
        • Coverage for general protections
          • What is a constitutionally-covered entity?
          • What is a Territory or a Commonwealth place?
          • What is a trade and commerce employer?
          • What is a Territory employer?
          • What is a national system employer?
        • What if I am not covered by the general protections?
        • What is adverse action?
          • What is dismissal?
          • What is ‘injuring’ the employee in his or her employment?
          • What is altering the position of the employee to the employee’s prejudice?
          • What is discriminating between the employee and other employees of the employer?
          • Threatened action and organisation of action
          • Exclusions
        • Workplace rights – Division 3
          • Meaning of workplace right
          • Coercion
          • Undue influence or pressure
          • Misrepresentations
          • Requiring the use of COVIDSafe
        • Industrial activities – Division 4
          • What are industrial activities?
          • Coercion
          • Misrepresentations
          • Inducements – membership action
        • Other protections – Division 5
          • Discrimination
            • Race
            • Colour
            • Gender identity & sexual orientation
            • Age
            • Physical or mental disability
            • Marital status
            • Family or carer’s responsibilities
            • Pregnancy
            • Religion
            • Political opinion
            • National extraction
            • Social origin
          • Exceptions
          • Temporary absence – illness or injury
          • Bargaining services fees
          • Coverage by particular instruments
          • Coercion – allocation of duties to particular person
        • Sham arrangements – Division 6
          • Misrepresenting employment
          • Dismissing to engage as independent contractor
          • Misrepresentation to engage as independent contractor
        • Making an application
          • Dismissal applications
            • Timeframe for lodgment
            • Late lodgment
          • Non-dismissal applications
          • Other types of applications
            • Multiple actions relating to dismissal
            • Unfair dismissal
            • Unlawful termination
            • Court application (interim injunction)
            • Discrimination
        • Power to dismiss applications
        • Evidence
        • Commission process
          • Conferences & hearings
          • Dealing with different types of general protections disputes
          • Rescheduling or adjourning matters
          • Representation by lawyers and paid agents
          • Bias
        • Outcomes
        • Costs
          • When are costs ordered by the Commission?
          • Costs against representatives
        • Appeals
        • Role of the Court
          • Enforcement of Commission orders
          • Types of order made by the Court
      • Industrial action benchbook
        • What is industrial action?
          • Unprotected industrial action
            • Orders to stop or prevent unprotected industrial action
          • Protected industrial action
            • Immunity
            • Common requirements
            • Employee claim action
            • Employer response action
            • Employee response action
            • Pattern bargaining
        • Taking protected industrial action
          • Protected action ballots
            • Who may apply?
            • Making an application
            • Commission process
            • Varying a protected action ballot order
            • Revoking a protected action ballot order
          • Voting
            • Ballot agents
            • Who may vote – roll of voters
            • Ballot papers
            • Voting procedure
            • Scrutiny of the ballot
            • Results of the ballot
            • When is industrial action authorised?
          • Notice requirements
          • Commencing protected industrial action
        • Payments relating to industrial action
          • Partial work bans
          • Unprotected industrial action – payments
          • Standing down employees
        • Suspension or termination of protected industrial action
          • Powers of the Commission
            • When the Commission may suspend or terminate
            • When the Commission must suspend or terminate
              • Threats to persons or the economy
              • Suspending industrial action
            • Requirements relating to a period of suspension
          • Powers of the Minister
        • Enforcement
        • Appeals
      • Sexual harassment benchbook
        • Overview of benchbook
        • What is sexual harassment?
        • Who is covered by the laws to stop sexual harassment at work?
          • Definition of ‘Worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking (PCBU)?
              • What is a Commonwealth authority?
              • What is a Territory or a Commonwealth place?
              • What is a body corporate incorporated in a Territory?
              • What is the Commonwealth?
        • When is a worker sexually harassed at work?
          • What does ‘at work’ mean?
          • Reasonable belief of bullying or sexual harassment at work
        • Risk of continued sexual harassment
          • Absence of future risk of sexual harassment
          • Change in circumstances
          • Other options for workers who are no longer working for the employer/principal
        • Making an application
          • Responding to an application
        • Commission process – Hearings and conferences
          • Powers of the Commission
          • Procedural issues
          • Representation by lawyers and paid agents
            • Notification of ‘acting for’ a person
            • What is representation?
            • When will permission be granted?
            • Exception – Conference by staff conciliator
            • Representation – Not in a conference or hearing
          • Bias
          • Rescheduling or adjourning matters
        • Evidence
          • Privilege against self-incrimination
        • What are the outcomes?
          • Conciliated outcomes
          • Orders to stop bullying or sexual harassment (or both) at work
          • Considerations
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
            • What are costs?
            • Applying for costs
            • When are costs ordered?
          • Appeals
          • Role of the Court
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • Coverage for unfair dismissal
          • Who is protected from unfair dismissal?
          • People excluded from national unfair dismissal laws
            • Independent contractors
            • Labour hire workers
            • Vocational placements & volunteers
            • Public sector employment
          • Constitutional corporations
          • High income threshold
          • Modern award coverage
          • Application of an enterprise agreement
          • What is the minimum period of employment?
            • How do you calculate the minimum period of employment?
            • What is continuous service?
            • What is an excluded period?
          • Bankruptcy
          • Insolvency
        • What is dismissal?
          • When does a dismissal take effect?
          • Terminated at the employer's initiative
          • Forced resignation
          • Demotion
          • Contract for a specified period of time
          • Contract for a specified task
          • Contract for a specified season
          • Training arrangement
          • What is a transfer of employment?
          • Periods of service as a casual employee
          • What is a genuine redundancy?
            • Job no longer required due to changes in operational requirements
            • Consultation obligations
            • Redeployment
          • What is the Small Business Fair Dismissal Code?
        • What makes a dismissal unfair?
          • Valid reason relating to capacity or conduct
            • Capacity
            • Conduct
          • Notification of reason for dismissal
          • Opportunity to respond
          • Unreasonable refusal of a support person
          • Warnings – unsatisfactory performance
          • Size of employer's enterprise & human resources specialists
          • Other relevant matters
        • Making an application
          • Application fee
          • Timeframe for lodgment
          • Extension of time for lodging an application
          • Who is the employer?
          • Multiple actions
          • Discontinuing an application
        • Objecting to an application
        • Commission process – conciliations, hearings and conferences
          • Conciliation
          • Hearings and conferences
          • Preparing for hearings and conferences
          • Representation by lawyers and paid agents
          • Rescheduling or adjourning matters
          • Bias
        • Remedies
          • Reinstatement
            • Order for reinstatement cannot be subject to conditions
            • Order to maintain continuity
            • Order to restore lost pay
          • Compensation
            • Calculating compensation
            • Instalments
            • Mitigation
            • Remuneration
            • Any other matters that the Commission considers relevant
            • Compensation cap
        • Dismissing an application
        • Evidence
        • Costs
          • Costs against representatives
          • Security for costs
        • Appeals
          • Staying decisions
        • Role of the Court
      • JobKeeper disputes benchbook
        • Introduction
          • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
        • JobKeeper enabling directions – general information
          • Service & entitlement accrual while a JobKeeper enabling direction applies
          • When a JobKeeper enabling direction will have no effect
          • Stand downs that are not jobkeeper enabling stand downs
          • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
        • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
          • Directions about duties & location of work
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Enterprise agreements benchbook

Bargaining representatives

On this page:

  • Introduction
  • Who can be a bargaining representative?
  • Nominating a bargaining representative
  • Revoking the appointment of a bargaining representative
  • Case examples
Content

Introduction

Employers and employees may appoint any person as their bargaining representative for a proposed enterprise agreement.

Bargaining representatives are entitled to bargain for enterprise agreements and depending on the type of agreement will usually be entitled to apply to the Fair Work Commission for orders and determinations relating to enterprise bargaining. Bargaining representatives are also entitled to represent a person in other types of matter before the Commission.

Bargaining representatives are required to meet the good faith bargaining requirements.

Non-compliance with these requirements exposes a bargaining representative to bargaining orders. (This only applies to bargaining representatives for a single-enterprise agreement or bargaining representatives for multi-enterprise agreements in the low-paid bargaining stream.)

Once bargaining for a proposed enterprise agreement has commenced, all bargaining representatives are required to recognise and bargain with the other bargaining representatives for the proposed agreement.[1]

Related information

  • Good faith bargaining requirements

  • Bargaining orders

Who can be a bargaining representative?

See Fair Work Act 2009 ss.176–177

For a proposed single-enterprise agreement (that is not a greenfields agreement)

The following people can be bargaining representatives for a proposed enterprise agreement:

  • an employer that will be covered by the agreement
  • a representative appointed by an employer
  • an employee that will be covered by the agreement
  • a representative appointed by an employee, or
  • a union (by default if an employee is a member).[2]

Employee may appoint himself or herself

An employee who will be covered by the agreement may appoint himself or herself as his or her bargaining representative for the proposed agreement.

Role of unions

A union is the default bargaining representative for an employee if:

  • the employee is a member of the union, and
  • the union is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

However, the union will not be the employee's bargaining representative if:

  • the employee revokes the status of the union as his or her bargaining representative; or
  • appoints another person, or appoints himself or herself, as bargaining representative for the agreement.[3]

A union or an official of a union (whether acting in that capacity or not) cannot be a bargaining representative of an employee unless the union is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.[4]

An example is provided in the Explanatory Memorandum:[5]
This means, that during bargaining, an employee who is a member of a union may appoint their own bargaining representative with the effect that the automatic appointment of the union as that employee's bargaining representative will cease to apply.

For a proposed single-enterprise agreement that is a greenfields agreement

The following persons can be bargaining representatives for a proposed enterprise agreement that is a greenfields agreement:

  • an employer that will be covered by the agreement
  • a person who is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement
  • a union:
    • that is entitled to represent the industrial interests of one or more of the employees who will be covered by the agreement, in relation to work to be performed under the agreement, and
    • with which the employer agrees to bargain for the agreement.[6]

For a proposed multi-enterprise agreement if a low-paid authorisation is in operation

If a union applied for the authorisation and the union would not otherwise be a bargaining representative of an employee who will be covered by the agreement, the union is taken to be a bargaining representative of the employee unless the employee:

  • is a member of another union that also applied for the low-paid authorisation
  • has appointed another person as his or her bargaining representative, or
  • has revoked the status of the union as his or her bargaining representative.[7]

Nominating a bargaining representative

See Fair Work Act s.178

Notification in writing

For a person to be recognised as a bargaining representative for a proposed enterprise agreement, they must be appointed in writing (by an instrument of appointment), except in the case of a union that is a default bargaining representative.

A copy of the instrument of appointment must:

  • for an appointment made by an employee who will be covered by the agreement – be given to the employee's employer
  • for an appointment made by an employer that will be covered by a proposed enterprise agreement (that is not a greenfields agreement) – be given, on request, to a bargaining representative of an employee who will be covered by the agreement, and
  • for an appointment made by an employer that will be covered by a proposed single-enterprise agreement that is a greenfields agreement – be given, on request, to a union that is a bargaining representative for the agreement.

When appointment of a bargaining representative comes into force

An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

No limitations

There is no limitation within the Fair Work Act on when a person may appoint or change or revoke the appointment of a bargaining representative.

Independence

A bargaining representative of an employee must be free from control by or improper influence from the employee's employer or another bargaining representative.[8]

Revoking the appointment of a bargaining representative

See Fair Work Act s.178A

For a proposed enterprise agreement (that is not a greenfields agreement)

The appointment of a bargaining representative for a proposed enterprise agreement, and the default representation by a union of a member, may be revoked by written instrument.

A copy of a revocation instrument:

  • made by an employee who will be covered by the agreement – must be given to the employee's employer, and
  • made by an employer that will be covered by a proposed enterprise agreement, other than a single-enterprise agreement that is a greenfields agreement – must be given to the bargaining representative and, on request, to a bargaining representative of an employee who will be covered by the agreement.

For a proposed single-enterprise agreement that is a greenfields agreement

The appointment of a bargaining representative made by an employer that will be covered by a proposed single-enterprise agreement that is a greenfields agreement may be revoked by written instrument.

A copy of a revocation instrument must be given to the bargaining representative and, on request, to a union that is a bargaining representative for the agreement.

Case examples

Able to act as a bargaining representative

Union entitled to represent the industrial interests of employees

Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane v Queensland Nurses’ Union of Employees [2014] FWCFB 1447 (Acton SDP, Drake SDP C, Booth C, 24 March 2014).

The employer engaged two types of employees, nurses and support and care employees, covered by two separate enterprise agreements. During bargaining for a new enterprise agreement in relation to care and support employees, the Commission made a bargaining order following an application from the Queensland Nurses' Union of Employees (QNU).

The employer appealed the decision to make the order on the basis the Commission had erred in finding that QNU was a bargaining representative for the proposed enterprise agreement.

At first instance, the Commission undertook an analysis of QNU's eligibility rules and concluded that the work performed by the two employees who were members of the QNU was of a type that entitled QNU to represent those employee's industrial interests..

The employer argued that the Commission had mischaracterised the work performed by the two QNU employees and that it could not meet the definition of the relevant work within the QNU's eligibilty rules. On that basis, the employer argued, QNU was not entitled to represent the industrial interests of the two employees

In finding that QNU was entitled to represent the industrial interests of the two employees, the Full Bench considered the work to be performed by the employees under the proposed enterprise agreement. The Commission was satisfied that the classification structure in the proposed agreement provided enough flexibility that the work to be performed by the two employees would include work that met the relevant definition in QNU's eligibility rules. QNU was therefore a bargaining representative for the proposed enterprise agreement.

NOT able to act as a bargaining representative

Employer bargaining representative not validly appointed

First application – Appeal: Kaizen Hospitals (Essendon) Pty Ltd v Australian Nursing Federation [2012] FWAFB 8866 (Boulton J, Kaufman SDP, Cribb C, 18 October 2012), [(2012) 224 IR 400].

Second application – Approval decisions: Re Australian Nursing Federation [2012] FWAA 10420, [2012] FWAA 10505, [2012] FWAA 10511 (Hamilton DP, 20 December 2012).

Appeal: Re Kaizen Hospitals (Malvern) Pty Ltd T/A Malvern Private Hospital and Others [2013] FWCFB 1846 (Watson SDP, Hamberger SDP, Cargill C, 26 March 2013).

Judicial review: Judicial review: Kaizen Hospitals (Essendon) Pty Ltd v Australian Nursing and Midwifery Federation [2014] FCA 428 (2 May 2014).

Full Court appeal: Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23 (5 March 2015).

The Commission, at first instance, approved three enterprise agreements covering nurses at the Essendon Private Hospital, Malvern Private Hospital and Melbourne Eastern Private Hospital in Victoria. In relation to the original applications, each application:

  • was made in the name of the employing company at the relevant hospital
  • identified SIAG Pty Ltd as the applicant’s representative
  • stated that the applicant company appointed SIAG as its bargaining representative, and
  • was signed by a representative of SIAG in the capacity/position as "Employer Bargaining Representative".

The appellants contended that the Commission erred in approving the agreements, because the hospitals did not agree to the terms of the relevant agreements, did not appoint the employer bargaining representative (SIAG) which made the applications for the approval of the agreements, and did not authorise the company representative who made the statutory declarations in support of approval to do so.

The Full Bench found that the applications for approval were not validly made. If the applications were made by an employer bargaining representative, then they were made by one who was not validly appointed in accordance with the Fair Work Act. There was no instrument of appointment or other written document or any other evidence produced in the appeal proceedings to show that SIAG had been appointed as the employer bargaining representative for the agreements. The mere lodgement of an application in the name of an employing entity but without authorisation to do so is not sufficient to meet the requirements of the Fair Work Act. Accordingly permission to appeal was granted in each matter, the appeals were allowed and the approval of the agreements set aside.

The Australian Nursing and Midwifery Federation (ANMF) made a second application, on the basis that the employers were acting as their own bargaining representatives. These were again approved at first instance. A Full Bench of the Commission denied the hospitals' permission to appeal. The hospitals then applied to the Federal Court for a judicial review which found an absence of authority for the agent to sign agreement on behalf of the employers, the approval by the Commission at first instance was quashed.

A subsequent appeal was made to the Full Court of the Federal Court by the ANMF. The Full Court found that the employer bargaining representative was acting within the scope of his ‘apparent authority’ and as a consequence each agreement could be considered signed by the employer as a matter of law. The Full Court upheld the appeal and set aside the orders made by the judge in the judicial review.

Union had no member who would be covered by the agreement

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Inghams Enterprises Pty Ltd [2011] FWAFB 6106 (Acton SDP, Hamilton DP, Simpson C, 8 September 2011), [(2011) 212 IR 351].

The AMWU gave notice to Inghams of its intention to make an enterprise agreement with Ingham Enterprises Pty Ltd in respect of employees at Grant Road, Somerville covered by the Metal, Engineering and Associated Industries Award. Inghams replied to the AMWU advising that it only had two employees in its maintenance department and both employees were covered by individual agreement-based transitional instruments with nominal expiry dates that had not yet passed. Inghams went on to advise it did not agree to commence bargaining for an enterprise agreement.

Some time subsequently Inghams initiated bargaining with two of its employees employed to conduct engineering maintenance and repairs at its Somerville plant. The two employees each appointed a person other than the AMWU as a bargaining representative. The Somerville Agreement was made as a result of the two employees voting to approve it. The application for approval was accompanied by a conditional termination instrument.

The AMWU submitted it had a right to be notified of and/or appear in the proceedings before the Commissioner for approval of the Somerville Agreement and it was not notified of or given the opportunity to appear in those proceedings.

To be a bargaining representative, the AMWU had to have at least one member who would be covered by the agreement. Evidence indicated the AMWU had no such member. As a result the Commission was not satisfied the AMWU was a bargaining representative.

References

Content

[1] Fair Work Act s.228(1)(f).

[2] Fair Work Act s.176.

[3] Fair Work Act ss.176(1)(c) and 176(3).

[4] Fair Work Act s.176(3).

[5] Explanatory Memorandum to Fair Work Bill 2008 [716].

[6] Fair Work Act s.177.

[7] Fair Work Act ss.176(1)(b) and 176(2).

[8] Fair Work Regulations reg. 2.06.

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 17 Feb 2022
Location on last update: https://www.fwc.gov.au/bargaining-representatives