Fair Work Commission

A bargaining representative is a person nominated to participate in bargaining for a proposed enterprise agreement. A bargaining representative can be an employer, employee, union, industrial association, or any other person specified in writing by either the employer or employee.

A union will be the default bargaining representative for any employees who are members of the union, unless the employee(s) have:

• appointed another person in writing as their bargaining representative, or
• revoked the status of the union as the default bargaining representative in writing.

Once bargaining for a proposed enterprise agreement has commenced, all bargaining representatives are required to recognise and bargain with the other bargaining representatives for the proposed agreement.

Please keep any bargaining representative nomination forms that are provided to you by employees as you will need to provide these when lodging your application. 

Once bargaining has commenced, it is common to:

• prepare a draft agreement with the terms you would like to include in your agreement
• hold a meeting to discuss what could be contained in an agreement, or
• alternatively, a bargaining representative (which might include a union) may provide a list of proposals or a draft agreement as a starting point.

Bargaining representatives are required to meet the good faith bargaining requirements. Good faith bargaining requirements aim to ensure that all bargaining representatives act in an appropriate and productive manner. Non-compliance with these requirements exposes a bargaining representative to bargaining orders.

Good faith bargaining means you must genuinely consider and respond to offers and proposals put forward by the other side. It doesn’t mean that you have to make concessions.

Examples of conduct that is consistent with good faith bargaining includes:

• holding meetings to discuss the proposed agreement
• sharing relevant information with each other in a timely manner
• giving genuine consideration to each other’s proposals
• responding to proposals and giving reasons for the response to proposals, and
• recognising and working with each other’s bargaining representatives (if any).

If you think that a party involved is not meeting the good faith bargaining requirements, you may apply to the Commission for assistance to promote fair and efficient bargaining.

To develop the terms of your agreement, it may be helpful to view the following:

• the modern award(s) relevant to your business
• the National Employment Standards (NES)
• your current agreement (if you have one), or
• examples of other agreements made by similar businesses. All agreements that have been approved by the Commission are available on the document search for agreement page on our website. On the left-hand menu you can choose a relevant Industry from the drop-down list.

Modern awards and the NES set out minimum entitlements for employees, such as rates of pay, penalty rates and allowances. You can find the modern award(s) that applies to your business on the modern awards list page of our website.

If you don’t know which award(s) apply to your business, the Fair Work Ombudsman can help. Check their Find my award page on their website or call them on 13 13 94.

Awards are enforceable documents containing minimum terms and conditions of employment in addition to any legislated minimum terms. Awards provide pay rates and conditions of employment such as leave, ordinary hours of work, overtime and shiftwork entitlements, and other workplace related conditions.

Most modern awards relate to particular industries or occupations.

Before the better off overall test can be applied, it is necessary to correctly identify the modern award(s) that cover the employees and their employer(s) in relation to the work to be performed under the enterprise agreement.

The better off overall test (the BOOT) is a test used by the Commission to determine whether an enterprise agreement can be approved. When an application for approval of an enterprise agreement is made, the Commission must consider whether employees will be better off overall if the agreement applied to them instead of the modern award.

The BOOT involves a comparison of the terms of a proposed agreement with the terms of the modern award that would otherwise apply.

An agreement will pass the BOOT if the Commission Member is satisfied that at the time the application for approval is lodged with the Commission (the test time), each current and future employee who will be covered by the agreement will be better off overall if the agreement applies to them than if the relevant modern award applies to them.

You can find out more about the better off overall test (BOOT) in the enterprise agreements benchbook.

The National Employment Standards are minimum standards that apply to the employment of employees which cannot be reduced. The NES are set out in Part 2–2 of the Act and relate to:

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

For more information, see our National Employment Standards page.

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

The nominal expiry date cannot be more than four years after the Commission approves the agreement (not after the date the agreement commences).

An enterprise agreement has continuing operation and continues to apply even after it has passed its nominal expiry date until it is terminated or replaced.

The notice of employee representational rights (NERR) is a document which informs employees of their rights during bargaining including their right to be represented.

It is given to employees at the commencement of bargaining.

The date of notification is the point at which the parties start the bargaining and agreement making process, whether by agreement or order of the Fair Work Commission. The date of notification is the starting point for the agreement making process.

The date of notification for a proposed enterprise agreement is the time when:

• the employer agrees to bargain, or initiates bargaining, for the proposed agreement
• a majority support determination in relation to the proposed agreement comes into operation
• a scope order in relation to the proposed agreement comes into operation, or
• a low-paid authorisation in relation to the proposed agreement that names the employer comes into operation.

The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process.

The access period consists of 7 clear calendar days.

Test time is the time the application for approval is lodged with the Commission. For the purposes of the BOOT, the rates of pay in the agreement are compared against the award rates in effect on this date.

An agreement is made when a majority of employees who cast a valid vote, vote in favour of making the agreement.