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Enterprise agreements benchbook

An overview of legal procedure & case law

Glossary & naming conventions

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Table of contents

On this page

  • Naming conventions
  • Glossary
  • References

 

Naming conventions

Employees, employers and employee organisations etc

The separate parties involved in making enterprise agreements are referred to in this benchbook as employee and employer, or union where appropriate. At times the use of employee, employer or union may also be a reference to employees, employers or unions if that is appropriate.

Employee organisations are generally referred to as unions, given the general use and understanding of that term.

Enterprise-level agreements

The name of enterprise agreements has changed with the different Commonwealth legislation in force from time to time (for example, certified agreement, collective agreement and enterprise agreement). In this benchbook all such agreements are referred to as enterprise agreements or just agreements.

Any enterprise agreement which has not yet been made is referred to as a proposed enterprise agreement.

Glossary

Term Definition

Adjournment

To suspend or reschedule proceedings (such as a conciliation, conference or hearing) to another time or place, or indefinitely.

Appeal

An application for a Full Bench of the Fair Work Commission to review a decision of a single member of the Commission and determine if the decision was correct.

A person must seek the permission of the Commission to appeal a decision.

Applicant

A person who makes an application to the Commission.

Application

The way of starting a case before the Commission. An application can only be made using a form prescribed by the Fair Work Commission Rules 2013 (Cth).

Arbitration

The process by which a member of the Commission will hear evidence, consider submissions and then make a decision in a matter.

Arbitration generally occurs in a formal hearing and generally involves the examination and cross-examination of witnesses.

Bargaining

Bargaining is the process by which the parties to a proposed enterprise agreement negotiate the coverage and terms and conditions of the agreement.

Bargaining representative

A bargaining representative is a person nominated to participate in bargaining for a proposed enterprise agreement.

A bargaining representative can be an employer or an employee, or a union or industrial association.

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.[1]

Civil remedy provision

A provision of the Fair Work Act that if breached, means that the person affected can apply to a Court for an order for a financial penalty against the person who contravened the provision of the Act, or any other order the Court considers appropriate such as an injunction.

Commission Member

Someone appointed by the Governor-General as a Member of the Commission. A member may be a Commissioner, a Deputy President, a Vice President or the President.

Conference

A proceeding conducted by a Commission Member which is generally held in private.

Court

In this benchbook, a reference to Court generally means the Federal Court or Federal Circuit Court.

Day

What is a day?

Understanding what constitutes a day is important regarding any legal process with requirements to meet specific timelines.

Section 36(1) of the Acts Interpretation Act 1901 (Cth)[2] deals with the manner in which time is to be considered in interpreting the Fair Work Act. It reads:

'(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.'

This means that when calculating time you do not count the day on which the relevant act or event occurs or occurred.[3]

Decision

A determination made by a single member or Full Bench of the Commission[4].

A decision in relation to a matter before the Commission will generally include the names of the parties and outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter.

Discontinue

To formally end a matter before the Commission.

A discontinuance can be used during proceedings to stop the proceedings or after proceedings to help finalise a settlement. Once a matter has been discontinued it cannot be restarted.

Employee organisation

See union

Employer organisation

An organisation which represents the interests of employers which has been registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

Enterprise agreement

An enterprise agreement is an agreement made at the enterprise level and enforceable under legislation which sets out terms and conditions of employment of employees and their employer (or employers).

An enterprise agreement sets out rights and obligations of the employees and the employer(s) covered by the agreement.

An enterprise agreement must meet a number of requirements under the Fair Work Act before it can be approved by the Commission.

Error of law

An error of law is a common ground for legal review. It occurs when a member of the Commission has misunderstood or misapplied a principle of law; for example, by applying the wrong criteria, or asking the wrong question.

Evidence

Information which tends to prove or disprove the existence of a particular belief, fact or proposition.

Certain evidence may or may not be accepted by the Commission, however the Commission is not bound by the rules of evidence.

Evidence is usually set out in an affidavit or given orally by a witness in a hearing.

Explanatory Memorandum

An Explanatory Memorandum is a document that provides additional information about how proposed legislation is expected to operate and details about individual sections and provisions of that legislation.

Fair Work Act

The Fair Work Act 2009 (Cth) is Commonwealth legislation dealing with workplace relations laws in Australia.

Fair Work Regulations

The Fair Work Regulations 2009 (Cth) is supporting legislation for the Fair Work Act.

Fair Work Act

Fair Work Act 2009 (Cth).

First instance

A decision (or action) which can be considered the first decision (or action) to be made in relation to a matter.

Full Bench

A Full Bench of the Commission comprises at least 3 Commission members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act.

A Full Bench can give a collective judgment if all of its members agree, or independent judgments if the members' opinions differ.

Greenfields agreement

An agreement relating to a genuine new enterprise (including a new business, activity, project or undertaking) which is made at a time where the employer or employers have not yet employed any of the persons who will be necessary for the normal conduct of the enterprise and who will be covered by the agreement.

Hearing

A proceeding or arbitration conducted before the Commission which is generally open to the public.

Industrial instrument

A generic term for a legally binding industrial document which details the rights and obligations of the parties bound by the document, such as an enterprise agreement or award.

Injunction

An injunction is a legal remedy imposed by a court and requires a person to do a specific thing or more commonly to refrain from beginning or continuing a specific action.

Jurisdiction

The scope of the Commission's power and what the Commission can and cannot do.

The power of the Commission to deal with matters is specified in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.

Lodge

The act of delivering an application or other document to the Commission.

Matter

Cases at the Commission are referred to as matters.

Mediation

A method of dispute resolution promoting the discussion and settlement of disputes.

Member

See Commission Member

Minister

The Federal Minister for Employment.

National Employment Standards NES

Minimum standards that apply to the employment of all national system employees. They are set out in Part 2–2 of the Fair Work Act and relate to:

  • maximum weekly hours
  • requests for flexible working arrangements
  • parental leave and related entitlements
  • annual leave
  • personal/carer's leave and compassionate leave
  • community service leave
  • long service leave
  • public holidays
  • notice of termination and redundancy pay, and
  • the Fair Work Information Statement

The National Employment Standards are minimum standards that apply to the employment of employees which cannot be displaced. The NES are set out in Part 2–2 of the Fair Work Act

Nominal expiry date

The date specified in an enterprise agreement which indicates the period of time that the parties intended the agreement to operate.

The nominal expiry date cannot be more not more than 4 years after the day the Commission approves the agreement.

An enterprise agreement has continuing operation, and continues to apply even after it has passed its nominal expiry date.

Notice of Listing

A formal notification sent by the Commission setting out the time, date and location for a matter to be heard. A Notice of Listing can also include specific directions or requirements.

Notified negotiation period

The 6 month period within which the parties to a proposed single‑enterprise agreement that is a greenfields agreement have to bargain.

Order

A formal direction of the Commission which gives effect to a decision and is legally enforceable.

Organisation

See union or employer organisation

Outworker

A person who performs work at residential premises or at other premises that would not conventionally be regarded as being business premises.

Party

A person or organisation involved in a matter before the Commission.

Pecuniary penalty

An order to pay a sum of money which is made by a Court as a punishment.

Procedural fairness

Procedural fairness requires that a person whose interests will be affected by a decision receives a fair and reasonable opportunity to be heard before the decision is made.

Procedural fairness is concerned with the decision making process followed or steps taken by a decision maker rather than the actual decision itself.

The terms procedural fairness and natural justice have similar meaning and can be used interchangeably.

Proposed enterprise agreement

An agreement that an employer, an employee or a bargaining representative proposes that will cover an employer and an identified group of employees. The phrase proposed agreement or proposed enterprise agreement is used to describe an enterprise agreement before it is made by a vote of employees or, in the case of a greenfields agreement before it is signed by the employer and a relevant registered organisation.

Quash

To set aside or reject a decision or order, so that it has no legal effect.

Referred state

States that have referred some workplace relations matters to the Commonwealth to allow the Commonwealth to make laws with respect of those matters.

All states except Western Australia have referred some matters.

Respondent

A party responding to an application made to the Commission.

Representative

A person who acts on a party's behalf. This could be a lawyer, a paid agent, an employee or employer organisation or someone else.

Generally, a lawyer or paid agent can only represent a party before the Commission with permission of the Commission.

Respondent

A party responding to an application made to the Commission.

Service (Serve)

Service of a document means delivering the document to another party or their representative, usually within a specified period.

Documents can be served in a number of ways. The acceptable ways in which documents can be served are specified in Parts 7 and 8 of the Fair Work Commission Rules 2013.

Serving documents

See service

Statutory declaration

A written statement in a prescribed form in which a person declares something to be true.

Such a statement is declared before, and witnessed by, an authorised official (such as a justice of the peace).

Transitional Act

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

Union

An organisation which represents the interests of employees which has been registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

A union can also be referred to as an employee organisation.

Workplace determination

Terms and conditions of employment determined by a Full Bench of the Commission.

The Commission can make:

  • low-paid workplace determinations
  • industrial action related workplace determinations, and
  • bargaining related workplace determinations.

An industrial action related workplace determination must be made where protected industrial action has been terminated by the Commission or the Minister and the bargaining representatives have not settled all of the matters at issue during the post-industrial action negotiating period.[5]

A workplace determination includes a nominal expiry date set by the Commission.

References

[1] Fair Work Act s.176(1)(b).

[2] As in force 25 June 2009 (see Fair Work Act s.40A).

[3] Re White's Discounts Pty Ltd t/as Everybody's IGA Everyday and Broken Hill Foodland PR937496 (AIRCFB, Giudice J, Drake SDP, Lewin C, 12 September 2003) at paras 15–16, [(2003) 128 IR 68].

[4] The General Manager of the Commission, or a member of staff delegated powers under ss.625 or 671 of the Fair Work Act may also make a decision.

[5] See Fair Work Act s.266.

Updated time

Last updated

24 May 2019

 

 

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  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
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        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
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  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • 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 and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
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      • Who is the employer?
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      • Conciliation
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      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
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        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
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      • Costs against representatives
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    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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