Fair Work Commission

The agreement states that the nominal expiry date is 4 years from commencement of operation of agreement.

The nominal expiry date of an agreement must be no more than 4 years after the date the agreement was approved by the Fair Work Commission.^[1]

As the earliest commencement date of an agreement is 7 days after it is approved, a nominal expiry date of 4 years 'from commencement' will exceed this.

An agreement cannot include any unlawful terms such as discriminatory or objectionable terms, a term that is inconsistent with the industrial action provisions of the Fair Work Act 2009 or a term that provides for a right of entry other than in accordance with the Fair Work Act.

The Commission will review agreements for unlawful content and cannot approve an agreement that contains unlawful terms.^[2]

Example unlawful terms:

• the agreement includes a superannuation default fund term that specifies a fund that does not offer a MySuper product, and
• the agreement contains terms that deal with the rights of officials or employees of employee organisations to enter the employer's premises other than in accordance with Part 3-4 of the Fair Work Act.

Agreements cannot include a term that requires superannuation contributions for default fund employees to be made to a superannuation fund, unless that fund offers a MySuper product (or is an exempt public sector scheme or is a fund of which a relevant employee is a defined benefit member).^[3]

An agreement must not include right of entry terms that are inconsistent with the Fair Work Act.^[4]

The agreement states that it 'should be read in conjunction with the award' or uses other language which does not clearly indicate whether the parties intend for the award to be incorporated or not.

The agreement should clearly state whether or not the award is incorporated into the agreement.

If the award is incorporated into the agreement, the agreement should make clear whether the agreement or award clause will apply where the clauses are inconsistent in any way. Otherwise, it may be unclear to the Commission whether the employees properly understood the terms of the agreement at the time of voting for it, and how the Commission is to apply the better off overal test.