Fair Work Commission

This benchbook has been arranged to reflect the process users would follow when bargaining for, and making an enterprise agreement. Issues that may arise at a certain point during the agreement making process will be addressed as they come up. As a result, this benchbook may not deal with these issues in the same order as the Fair Work Act 2009.

Bargaining process under the Fair Work Act

Note: The diagram below sets out bargaining process as it applies in general terms. However, this diagram does not relate to the process for making a greenfields agreement.

To assist readers this diagram is reproduced in various parts of this benchbook to illustrate the step(s) in the bargaining process being discussed.

In some cases, the bargaining process can involve other steps, including applications to the Fair Work Commission in relation to the commencement of a bargaining process or applications to deal with an issue arising between the bargaining participants during the bargaining process. In these circumstances, the Commission may be able to assist the parties to address the issue.

Who can bargain for an enterprise agreement under the Fair Work Act?

See Fair Work Act s.14

Only an employer who is a national system employer can bargain for an enterprise agreement under the Fair Work Act.

Whether an employer is a national system employer depends on the location of the employment relationship (state or territory) and, in some cases, the legal status and business of the employer.

Who is covered by national workplace relations laws?

In broad terms the national workplace relations system covers:

• all employers and employees in Victoria (with limited exceptions in relation to some State public sector employees), the Northern Territory and the Australian Capital Territory
• all employers and employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands
• private enterprise employers and employees in New South Wales, Queensland and South Australia
• private enterprise employers and employees and local government employers and employees in Tasmania
• employers that are constitutional corporations and their employees in Western Australia (including Pty Ltd companies) – this may include some local governments and authorities
• the Commonwealth and Commonwealth authorities and their employees, and
• the employers of waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce and these employees.