ENTERPRISE BARGAINING & ENTERPRISE AGREEMENTS – Litigation, Employment, Industrial, Commercial, Intellectual Property and Technology Lawyers
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The procedural requirements associated with bargaining for enterprise agreements under the Fair Work Act 2009 can be extremely daunting for an unfamiliar person.


Bargaining may commence under the Act in a number of ways. An employer may choose to bargain and commence bargaining. Where an employer does not choose to bargain the employees can compel the employer to bargain through a number of means in the Fair Work Act 2009.


TheFair Work Act 2009 does impose a duty on employers to bargain collectively where a majority of employees can be shown to want that.


The Fair Work Act 2009 prescribes a very detailed process to properly make an enterprise agreement that can be approved by the Fair Work Commission including:

  • Issuing a notice of representational rights within days of bargaining commencing;
  • Bargaining in good faith with all bargaining representatives;
  • Providing employees with access to a proposed agreement at least 7 days before a voting process commences;
  • Advising employees about the time and place of the vote and the voting method at least 7 days before the voting process commences;
  • If a majority of employees who cast a vote approve the agreement, an application must be made to the Commission for approval of the agreement within 14 days.


Applications for the approval of an agreement are regularly dismissed by the Commission because all of these requirements have not been met.


The Commission will only approve the agreement if the following conditions and requirements are met:

  • The procedural steps have been strictly followed;
  • All employees will be better off overall under the agreement than they would otherwise be under the relevant award.
  • The agreement contains mandatory content regarding dispute resolution, consultation and individual flexibility arrangements.
  • The agreement does not undermine the minimum conditions in the National Employment Standards or contain unlawful terms.


Good Faith Bargaining

The introduction of good faith bargaining provisions in the Fair Work Act 2009 was  the first time to have good faith bargaining obligations enshrined in legislation in Australia.

The operation of an enterprise agreement displaces the operation of an award. The modern award system was instituted as a safety net for the enterprise agreement bargaining scheme, along with the National Employment Standards (NES) for all Federal System Employees.


The entire bargaining process can take as little as 21 days for an agreement to be put to the vote.


With the right advice and a tactful approach the enterprise bargaining and enterprise agreement approval processes can be easily managed.


This long history of industrial regulation is often still important to understand for a practitioner of industrial relations. Interpretation of current enterprise agreements or awards may depend on the, decisions, historical instruments and the legislation underpinning those documents.


Submit an inquiry online or call Crawford de Carne Lawyers today if you require assistance at any stage of an enterprise bargaining process.



The article, the content and references made are intended to keep an audience updated with information. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply to in all circumstances or in particular situations. If you do want particular advice or you have any questions, we welcome you to contact us on (02) 9004 7404 or at general@cdclaw.com.au