Step 2: Start bargaining

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Record the date of notification

The day you and your employees start to bargain (or agree to bargain) is called the date of notification.

Recording this date is important because it affects the timing of other steps in the agreement making process.

The process of bargaining usually begins with you initiating or agreeing to bargain for a proposed agreement with your employees.

Prepare the notice of employee representational rights (NERR)

Complete the NERR with the name of employer, proposed title and proposed coverage and select the relevant paragraphs that apply to the workplace.

The NERR comes from the Fair Work Regulations 2009 (Cth) (the Regulations). The NERR must contain only the content prescribed by the Regulations and no other content except that which the Regulations require the employer to insert or omit.

Important

If the NERR is not in the prescribed form, the Commission may not be able to approve the agreement.

Use our NERR generator to make sure your NERR complies with the Regulations.

For more information, see our Guide – Notice of Employee Representational Rights (NERR)

Distribute the NERR to employees

Distributing the NERR to employees notifies employees that bargaining has started. The NERR informs employees that they have the right to be represented during the bargaining process.

You must take all reasonable steps to give a NERR to all employees to be covered by the proposed agreement who are employed at the time of notification by no later than 14 days after the date of notification.

Example

You decide to start bargaining on 14 May. You have 14 days to give the NERR to your employees.

The first of the 14 days will be 15 May and the last will be 28 May.

You must give your employees the NERR by no later than 28 May.

If you give all of your employees a copy of the NERR on 20 May, you have complied with the timeframe.

You should consider how you will give the NERR to employees who may not be at the workplace on the day (such as employees who may be rostered off, on leave or on long-term absence).

In some cases it may be appropriate to use a variety of methods to give the NERR to different employees including by email, post or handing out copies.

Important

If all reasonable steps are not taken to give the NERR to all your employees in the timeframe, the Commission may not be able to approve the agreement. Then you may need to restart the bargaining process. To avoid this, ensure you take all reasonable steps to provide employees with the NERR, and that you document these steps.

Find out more about what all reasonable steps means in our enterprise agreements benchbook.

For more information see sections 173 and 174 of the Act.

Keep records of the date you gave the NERR to employees

Make sure you keep records of when you distributed the NERR to employees.

You will need to provide this information when you lodge your application.

If you gave the NERR to employees over a period of time, record the date you last gave the NERR to employees

The Act requires you to provide a copy of the NERR to employees who are engaged at the date of notification.

Record the date that you last provided the NERR to employees.

If you issued the last NERR over 14 days from the date of notification to these employees, record the reasons why.

You do not have to provide a copy of the NERR to employees who are engaged after the date of notification.

Keep records of how you distributed the NERR to employees

Make sure you keep records of:

how you provided the NERR to your employees,
the steps taken to provide the NERR to the employees, and
the appointment of any bargaining representatives that employees give to you in return.

You will need to provide this information when you lodge your application.

For more information see sections 173 and 174 of the Act.

For more information about bargaining, please see our About enterprise bargaining page

back to Step 1: Before you start bargaining

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on to Step 3: Developing the terms of the agreement

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Last updated

27 January 2021

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