Fair Work Commission

Starting point for bargaining

There are several mandatory steps that must be taken when starting to bargain for a proposed enterprise agreement. Some of these steps have specific timeframes set by the Fair Work Act 2009 which must be met.

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

There are no shortcuts

The process for making an enterprise agreement is set out in the Fair Work Act.

If you do not meet the requirements of the Fair Work Act then the Commission CANNOT approve the agreement.

Stage in bargaining process

Notification time

See Fair Work Act s.173(2)

The notification time 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 specifies the employer comes into operation.

Employer initiates or agrees to bargain

The employer can initiate the bargaining and agreement making process under the Fair Work Act.

Another possible option is that employees or their bargaining representative (eg union) may approach the employer and suggest that they commence the bargaining and agreement making process. If the employer agrees, the process can start immediately. If the employer does not agree to bargain, one option available to employees is to apply to the Commission for a majority support determination.