Fair Work Commission

Introduction

See Fair Work Act 2009 s.186(5)

One of the requirements for the Fair Work Commission to approve an enterprise agreement is the requirement that the enterprise agreement:

• specifies a date as its nominal expiry date, and
• the date will not be more than 4 years from the date the Commission approves the agreement.

Specifying a date

There are 2 ways the nominal expiry date can be expressed in an enterprise agreement:

• a specific date is chosen as the nominal expiry date, or
• a timeframe is given from the date of approval.

An enterprise agreement does not have to state a specific date to meet the requirements of s.186(5). An enterprise agreement can specify its nominal expiry date by reference to the end of a period of time after the agreement’s commencement or approval.^[1]

However, one of the issues with specifying a nominal expiry date by reference to the date of approval is that the parties do not know when the Commission may approve the agreement, so they do not control precisely when it will nominally expire.

Continuing operation of agreements

This means that the provisions contained within an old enterprise agreement will continue to apply to the parties covered by the agreement after the nominal expiry date. These provisions are fully enforceable and must be applied, even if the nominal expiry date was several years before.

Minimum entitlements

When an approved agreement continues to operate, the provisions of the National Employment Standards (NES) will apply in circumstances where an entitlement in the agreement is less than that provided for by the NES.

Reference

^[1] Newlands Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FWAFB 7325 (Hamberger SDP, McCarthy DP, Blair C, 15 December 2011) at paras 28–29.