See Fair Work Act 2009 ss.190–191
Where the Fair Work Commission has a concern that an enterprise agreement does not meet the requirements of ss.186 and 187 of the Fair Work Act (which include the better off overall test), the Commission may accept a written undertaking that meets this concern and approve the agreement.
Before accepting an undertaking, the Commission must:
- seek the views of each known bargaining representative for the agreement
- be satisfied the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the agreement, or result in substantial changes to the agreement.
An undertaking relating to an enterprise agreement must be signed by each employer who gives the undertaking.
A residual discretion remains to be exercised even if the undertaking that has been accepted meets the identified concern.
If an undertaking is accepted, the terms of the undertaking are taken to be a term of the agreement.
An undertaking that is expressed as varying a particular provision in an enterprise agreement should be taken to be a promise by the employer that the provision will not be applied and the term as set out in the undertaking will be.
An undertaking can only be accepted where there is a concern under ss.186 and 187; not to address other deficiencies.
'Section 190(3) does not permit undertakings that result in the wholesale reshaping of the agreement, such that it bears no resemblance to the pre-undertaking agreement that was approved by employees.'
The Commission cannot accept an undertaking to correct deficiencies of a flexibility term or a consultation term because they are not concerns about matters in s.186 and s.187 of the Fair Work Act.
If the Commission has any concerns with these then the model clauses will be inserted.