See Fair Work Act 2009 s.185
Once an enterprise agreement has been made, an application must be made to the Fair Work Commission for approval.
Employer initiates or agrees to bargain for a proposed enterprise agreement
Employer issues employees with a notice of employee representational rights
Employees may appoint bargaining representatives
Good faith bargaining
Representatives bargain for a proposed enterprise agreement
Employer asks employees to approve proposed enterprise agreement (by voting)
Bargaining representative lodges enterprise agreement with the Commission for approval
The Commission approves enterprise agreement
The making and approval of agreements involves some complexity. The Commission is required to ensure that each agreement and approval application fully complies with the procedural and substantive requirements of the Fair Work Act.
Additionally, from time to time decisions of the Commission, the Federal Court of Australia and the High Court of Australia mean that the Commission is required to apply the Fair Work Act in a different way. This can mean that following such a decision, approval applications are required to include additional information before a Member can be satisfied that they should be approved.
For example to address the issue raised in the One Key decision, the Commission may ask for information regarding how the effect of the terms of an agreement were explained to the employees.
Most agreements and approval applications either do not fully comply with the statutory requirements at the time they are lodged with the Commission or require additional information to be provided to assess compliance (non-compliant agreement applications).
The Commission could deal with non-compliant agreements and approval applications more quickly by dismissing them; however this would not assist the parties who have made an enterprise agreement. Instead, the Commission seeks to assist the parties by seeking further information and/or undertakings, in order to be able to approve the agreement.