See Fair Work Commission Rules 2013 r.24
This section provides detailed guidance on the requirements for materials accompanying the application to approve an enterprise agreement.
Completed Forms F16 (application form) and F17 (declaration) should be treated as documents that are freely available to any member of the public who wishes to see them, unless there are exceptional circumstances that would justify an order of confidentiality.[1]
An application for the approval of a single or multi-enterprise agreement made to the Fair Work Commission must include the following documentation:
A simple statement by an employer that an explanation has been given is not enough to satisfy the Commission that the requirement to explain the terms of the agreement has been met. In order to be satisfied, the Commission must consider the content of the explanation and the way it was given, having regard to all the circumstances and needs of the employees, and the nature of the changes made by the agreement.[2]
To help show that the employer has met this requirement they should provide:
Tip: Provide all supporting material
Each union that is a bargaining representative, or each bargaining representative who has been appointed by one or more employees, who want to advise the Commission about whether they:
must lodge a completed and sworn statutory declaration at any time before the Commission approves the agreement.
An application for the approval of a greenfields agreement made to the Commission must include the following documentation:
An application under subsection 182(4) for approval of an agreement made by lodgment after the end of notified negotiation period must be accompanied by:
An application for the approval of a single or multi-enterprise agreement must be made with a Form F16, and applications for approval of a greenfields agreement must be made with a Form F19. The application forms contain basic information, such as:
All forms are available on the Forms page of the Commission's website.
If an application is made by a bargaining representative appointed by an employer or by an employee rather than the employer covered by the agreement, the application must be accompanied by a copy of the written instrument of appointment of the bargaining representative.[4]
Any application form for the approval of an agreement must be accompanied by a statutory declaration from each employer. For a single or multi-enterprise agreement this is made with Form F17, for a greenfields agreement it is made with the Form F20.
This statutory declaration requires detailed information from the employer about the process that was followed in the making of the agreement, and how this process meets each pre-approval requirement in the legislation. The questions in the form must be answered truthfully and in sufficient detail to allow the Commission to determine whether the requirements of the Fair Work Act 2009 have been satisfied.
Under s.11 of the Statutory Declarations Act 1959 (Cth), a person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years.[5]
The form also requires the employer to specify which modern award (or other reference instrument) would have applied to employees if not for the agreement and provide information about how the employees are better off overall under the agreement rather than that award.
As soon as possible after lodging the form with the Commission, a copy must also be served on:
All forms are available on the Forms page of the Commission's website.
A union can also lodge a statutory declaration using Form F18. This form allows the organisation to advise the Commission whether it:
Similarly, a bargaining representative (such as another employee) who was appointed by one or more employees to represent their interests during bargaining can lodge a statutory declaration using Form F18A. This form allows the bargaining representative to advise the Commission whether it:
A copy of these forms must also be provided to the employer(s) covered by the agreement and all other bargaining representatives as soon as practicable after lodgement with the Commission.[6]
The statutory declaration must be completed truthfully. Under s.11 of the Statutory Declarations Act 1959 (Cth), a person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years.[7]
All forms are available on the Forms page of the Commission's website.
See Fair Work Act s.183
If a union wants a single or multi-enterprise enterprise agreement to cover it, the union must notify the Commission in writing. This notification is done by completing Question 6 on Form F18.
The notification must be given before the Commission has made its decision to approve the agreement. A copy of the notice must also be given to each employer covered by the agreement before the Commission approves the agreement.[8] The Commission will note in its approval decision that the agreement covers the union.[9]
When an agreement covers (and applies to) a union, the union will have certain entitlements that it would not otherwise have. For instance, the union will be able to enforce the terms of the agreement.[10]
For a greenfields agreement, a union covered by the agreement must lodge a statutory declaration using Form F21. This form allows the union to advise the Commission whether it:
Unlike the case of an application to approve a single or multi-enterprise agreement, a union will be covered by a greenfields agreement if it made the agreement.
All forms are available on the Forms page of the Commission's website.
If a statutory declaration is lodged by a bargaining representative appointed by an employer or by an employee, the declaration must be accompanied by a copy of the written instrument of appointment of the bargaining representative.[11]
[1] Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd [2016] FWCFB 8413 (Hamberger SDP, Booth DP, Bissett C, 19 December 2016) at para. 28.
[2] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (25 May 2018) at para. 112.
[3] Fair Work Act s.185A.
[4] Fair Work Commission Rules 2013 r.24(6).
[5] See for example Pennyco Pty Ltd t/a Zarraffas West Ipswich [2017] FWCFB 4852 (Hatcher VP, Colman DP, Harper-Greenwell C, 9 October 2017) at para. 34; Derbarl Yerrigan Health Service Inc. [2018] FWCFB 2721 (Catanzariti VP, Hamilton DP, Wilson C, 29 June 2018) at paras 34–35.
[6] Fair Work Commission Rules 2013 r.41.
[7] See for example Pennyco Pty Ltd t/a Zarraffas West Ipswich [2017] FWCFB 4852 (Hatcher VP, Colman DP, Harper-Greenwell C, 9 October 2017) at para. 34; Derbarl Yerrigan Health Service Inc. [2018] FWCFB 2721 (Catanzariti VP, Hamilton DP, Wilson C, 29 June 2018) at paras 34–35.
[8] Fair Work Act s.183(2).
[9] Fair Work Act s.201(2)–(2A).
[10] Fair Work Act s.539, table item 4; see also Explanatory memorandum to Fair Work Bill 2008 at para. 753.
[11] Fair Work Commission Rules 2013 r.24(6).