Fair Work Commission

Understand the purpose of bargaining

Before you start bargaining, ensure that you are familiar with bargaining and the purpose of engaging in it. 

Understand the role of bargaining representatives

Bargaining representatives may be nominated to participate in bargaining for an agreement. 

Understand your obligations during bargaining

Bargaining representatives are required to act in good faith so that bargaining is fair and efficient, so it is important that you understand your obligations as a representative.

Familiarise yourself with key timeframes

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 (the Act) which must be met. You should familiarise yourself with these timeframes.

Familiarise yourself with key terminology

Understand the main terms in the agreement making process including the better off overall test (BOOT), National Employment Standards (NES), access period, date of notification, award and notice of employee representational rights (NERR).

Familiarise yourself with the application forms

When you are ready to lodge your agreement for approval, it will need to be accompanied by certain forms including the Forms F16, F17, F18 and F18A. It is important to be familiar with these forms at the outset, particularly the Form F17.

Make a plan for communicating with your employees

Think about how you will communicate with employees during bargaining and the approval process. Consider your usual method of communication and whether you need to make any adjustments so that all reasonable steps are taken. If you have any employees with special needs or circumstances, they may require additional assistance.

Find out more about Step 1

Record the date of notification

This is generally the date you started to bargain or agreed to start bargaining.

Prepare the notice of employee representational rights (NERR)

The NERR generator will assist you to draft a compliant NERR to provide to your employees.

Distribute the NERR to employees

You must take all reasonable steps to distribute the NERR to all of the employees who will be covered by the agreement and are employed at the date of notification.

Record the date you gave the NERR to employees

You must provide the NERR to employees as soon as practicable and within 14 days from the date of notification.

If you gave the NERR to employees over a period of time, record the date you last gave the NERR to employees

If you issued the last NERR over 14 days from the date of notification, please detail the circumstances in your F17.

Record how you distributed the NERR to employees

Keep records of how you notified each applicable employee of their right to representation. You will need to lodge copies of these records, along with any other materials you gave to employees.

Find out more about Step 2

Consider the entitlements in the agreement that employees will vote on. If employees would otherwise be covered by a modern award, you will have to consider the entitlements including rates of pay that employees would receive under the modern award.

Your agreement should:

• Contain a coverage term which sets out the employees to be covered by the agreement

• Include a dispute settlement term which complies with the requirements in the Fair Work Act 2009 (the Act)

• Include a consultation term which complies with the requirements in the Act

• Include a flexibility term which complies with the requirements in the Act

• Have a nominal expiry date that is no more than 4 years from the date the agreement is approved by the Commission (not the date it commences)

• Contain other entitlements and conditions for employees, such as monetary and non-monetary entitlements

• Not contain any entitlements that displace the National Employment Standards (the NES), or alternatively contain an NES precedence clause.

Find out more about Step 3

Explain adequately to all employees the terms of the agreement and the effect of those terms

The Commission Member must be satisfied that all reasonable steps were taken to explain the agreement and the effect of its terms to employees so that employees understood what they were voting for.

The explanation should include a comparison of the terms of agreement compared to the award.

Record the steps taken to explain the terms and effect of the agreement to employees

The Form F17 requires the employer to describe the steps taken to explain the agreement and the effect of its terms, when the steps were taken, by whom, what was explained and how the particular circumstances and needs of employees including those with special needs or circumstances were taken into account.

Keep records of all the steps taken to explain the terms of the agreement and their effect. You will need to lodge copies of these records, along with any other materials you gave to employees.

Find out more about Step 5

Decide on a time, place and method of the vote

The vote must commence at least 21 clear days after you gave employees the NERR.

Consider and record the date when the access period commences

The access period is the 7 clear day period before the start of the vote.

Advise employees of the time, place and method of the vote by the start of the access period

Record how and when you advised employees of the details of the vote

When making your application, you will need to lodge copies of any material you gave to employees to notify them of the details of the vote for example emails, memos, notices placed on noticeboards etc.

Give employees who will be covered by the agreement a copy of, or access to, the proposed agreement and any other incorporated material by the start of the access period

Record how and when you gave employees a copy of, or access to, the agreement and any incorporated material

When making your application, you will need to lodge copies of any material you gave to employees to provide them with a copy of or access to the agreement and any incorporated material for example emails, memos, notices placed on noticeboards etc.

Find out more about Step 6

• Record the date the vote starts

• Record the date voting finishes

• The agreement is made when the majority of employees who cast a valid vote, voted to approve the agreement. Your application should be lodged within 14 days of the date the agreement is made.

• Record the number of employees covered by the agreement at the time of the vote

• Record the number of these employees who cast a valid vote

• Record the number of these employees who voted to approve the agreement

Find out more about Step 7

To make an application, the relevant forms will need to be filled in. An application form (F16) will need to be completed as well as the Employer’s declaration form (F17). If there are bargaining representatives who wish to submit forms, these will need to be completed as well (F18 and/or F18A).

Find out more about Step 8

When your forms are complete and you have gathered all the relevant material together, it is time to lodge your application. You can do this by emailing the relevant Commission office.

Make sure you lodge your application within 14 days of the agreement being made or the Commission may not be able to approve the agreement.

Before the Commission Member can approve your agreement, they must be satisfied that the agreement can be approved. To come to a decision, the Member will consider the application, agreement and supporting material alongside the requirements of the Act.

Find out more about Step 10