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Enterprise agreements benchbook

An overview of legal procedure & case law

Material to accompany application

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Table of contents

On this page

  • Introduction
  • Single or multi-enterprise agreements
  • Greenfields enterprise agreements
  • Application form
  • Statutory declaration from employer
  • Case example
  • Statutory declaration from union or bargaining representatives – single or multi-enterprise agreements
  • Case example
  • Statutory declaration from union – greenfields agreements
  • References

 

Introduction

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.

Important

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]

Single or multi-enterprise agreements

Employer requirements

An application for the approval of a single or multi-enterprise agreement made to the Fair Work Commission must include the following documentation:

  • a signed and dated copy of the agreement
  • a completed and signed application form [Form F16], and
  • a completed and sworn statutory declaration by each employer in support of the agreement [Form F17]. This must include a copy of the Notice of representational rights provided to employees.

Evidence that the terms of the agreement have been explained

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:

  • evidence of how the terms of the agreement, and the effect of those terms, were explained to the relevant employees
  • copies of any comparison between the agreement and the relevant modern award, and
  • evidence of how the explanation was provided in an appropriate manner, taking into account the particular circumstances and needs of the relevant employees.

Tip: Provide all supporting material

Related information

  • Signing agreement
  • Terms of the agreement must be explained

Bargaining representatives

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:

  • support or oppose approval of the agreement
  • agree with one or more statements in a statutory declaration made by an employer, or
  • have any concerns, issues or disagreements with the content of a statutory declaration made by an employer;

must lodge a completed and sworn statutory declaration at any time before the Commission approves the agreement.

  • A union bargaining representative completes [Form F18].
  • A bargaining representative appointed by one or more employees completes [Form F18A].

Greenfields enterprise agreements

Greenfields agreement made by signing

An application for the approval of a greenfields agreement made to the Commission must include the following documentation:

  • a signed and dated copy of the agreement
  • a completed and signed application form [Form F19]
  • a completed and sworn statutory declaration by each employer in support of the agreement. [Form F20], and
  • a completed and sworn statutory declaration by each union [Form F21].

Greenfields agreement that has been made by lodgment after end of notified negotiation period

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:

  • a copy of the agreement, and
  • any declarations that are required by the procedural rules to accompany the application.[3]

Related information

  • Greenfields agreement

Application form

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:

  • contact details for the applicant, bargaining representatives and/or unions
  • basic details of the agreement, such as its name and the industry of work it covers, and
  • whether there are, or have been, any similar agreements lodged with the Commission for approval.

Links to application forms

  • Form F16 – Application for approval of enterprise agreement
  • Form F19 – Application for approval of greenfields agreement

All forms are available on the Forms page of the Commission's website.

Application made by a bargaining representative

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]

Statutory declaration from employer

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:

  • each employer that will be covered by the agreement, and
  • each union that was a bargaining representative, and
  • any other employee appointed bargaining representative that the employer is are aware of.

Links to EMPLOYER declaration forms

  • Form F17 – Employer's declaration in support of an enterprise agreement
  • Form F20 – Employer's declaration in support of application for approval of a greenfields agreement

All forms are available on the Forms page of the Commission's website.

Case example

Employer's statutory declaration NOT accepted

Unreliable statutory declaration

Re Chirotherapy Pty Ltd [2011] FWA 4925 (McKenna C, 29 July 2011).

It appeared that the employer had used a template statutory declaration that had been used for numerous agreements in the past. Variants of the template had been the subject of concerns of the Commission, leading the Commission to require the employer to provide written undertakings.

The particular template in this case appeared incomplete and did not contain information that could be considered to be reliable, accurate, complete or otherwise acceptable. The application was listed for hearing but the applicant did not attend. The application was dismissed and the agreement was not approved.

Statutory declaration from union or bargaining representatives – single or multi-enterprise agreements

A union can also lodge a statutory declaration using Form F18. This form allows the organisation to advise the Commission whether it:

  • supports the approval of the agreement
  • has any concerns, issues or disagreements with the content of the employer’s statutory declaration, and
  • whether it wishes to be covered by the agreement.

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:

  • supports the approval of the agreement, or
  • has any concerns, issues or disagreements with the content of the employer’s statutory declaration.

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]

Links to EMPLOYEE declaration forms

  • Form F18 – Declaration of employee organisation in relation to an application for approval of enterprise agreement
  • Form F18A – Declaration of employee representative in relation to application for approval of an enterprise agreement

All forms are available on the Forms page of the Commission's website.

Entitlement of a union to have an enterprise agreement cover it

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]

Case example

Union NOT covered by agreement

Union failed to provide its notification that it wishes to be covered by agreement to the employer

RotoMetrics Australia Pty Ltd v Australian Manufacturing Workers' Union [2011] FWFB 7214 (Watson SDP, Richards SDP, Smith C, 27 October 2011), [(2011) 212 IR 373].

The AMWU notified the Commission that it wished to be covered by the agreement but failed to provide the notification to the employer. When it approved the enterprise agreement, the Commission noted in the decision that the AMWU was covered by the enterprise agreement.

The employer appealed this aspect of the approval on the basis that the AMWU had not provided the notification to the employer.

The Full Bench concluded that the requirement to provide the notification to the employer was a pre-condition to coverage, rather than simply a procedural requirement. Accordingly, given that the AMWU had not provided the employer with the notification, it could not be covered by the enterprise agreement.

Statutory declaration from union – greenfields agreements

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:

  • supports the approval of the agreement, or
  • has any concerns, issues or disagreements with the content of the employer’s statutory declaration.

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.

Link to UNION declaration form – greenfields agreements

  • Form F21 – Declaration of an employee organisation in relation to an application for approval of a greenfields agreement

All forms are available on the Forms page of the Commission's website.

Statutory declaration from bargaining representative

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]

References

[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).

Updated time

Last updated

15 May 2020

 

 

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    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
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    • Centenary
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      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
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      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
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  • Unfair dismissals benchbook
    • Overview of unfair dismissal
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    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
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      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
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        • Order for reinstatement cannot be subject to conditions
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        • Compensation cap
        • Instalments
    • Dismissing an application
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  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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