ENTERPRISE BARGAINING & AGREEMENTS

enterprise agreement enterprise bargaining

Enterprise bargaining is the process of negotiation generally between the employer, employees and their bargaining representatives with the goal of making an agreement. The Fair Work Act 2009 (Cth) establishes an often confusing set of rules and obligations about how an enterprise bargaining process is to occur, including rules about bargaining, the content of enterprise agreements, and how an enterprise agreement is made and approved. This process is often very overwhelming for employers and HR managers.

We can help you get

the most out of your agreements

There are many things that can go wrong during this process which may lead to bargaining disputes – a risk for businesses financially and legally. You may not know where to begin and need help developing agreements that can be used to set a precedent, or help developing HR and retention strategies. Going through weeks and maybe even months of discussion to create a fair enterprise agreement takes a lot of industrial knowledge and negotiation skills to work effectively through the issues of both sides – it’s a massive task.

NRA Legal supports your business and provides advice that is tailored to your needs, including acting as your bargaining agent in future negotiations and assisting with strategy, communications, negotiation and implementation.

Our industry insights and experience bargaining in highly unionised workforces mean we can assist you to achieve effective outcomes for your business.

It's no secret that these agreements can often be misunderstood, so with a team of experienced lawyers on your side, you can feel confident knowing that you always have experts acting on your behalf.

1800 572 679

Frequently

asked questions

What is enterprise bargaining?

Enterprise bargaining is a process of negotiation undertaken between employers and employees (and their bargaining representatives) with a view to creating an ‘enterprise agreement’. The Fair Work Act 2009 (Cth) sets out a range of clear rules about how enterprise bargaining can occur, who can participate in the bargaining process, and more broadly, the content and scope of any negotiated enterprise agreement. The enterprise bargaining process is undertaken with a goal of reaching an agreement that results in both the employer and employees, being better off overall as compared with a modern award.

What is the difference between a modern award and an enterprise agreement?

Modern awards and enterprise agreements both set out the primary entitlements, rights and obligations of employers and employees. However, an enterprise agreement only applies to the employees of one particular organisation (rather than an entire industry or occupation group). Enterprise agreements are usually tailored to suit a particular business, and subject to a few conditions, can allow employers and employees more flexibility in the way they operate and work. If an enterprise agreement is in place, any modern award which would otherwise cover a business’ employees will no longer apply.

What do enterprise agreements cover?

Just like modern awards, enterprise agreements set out the employment conditions for a group of employees. They can cover a range of employment matters, including:

how much to pay your employees;
how to pay your employees (for example, a salary, flat hourly rate, or fluctuating hourly rate?); and
what hours your employees can work, and when they can work them,

amongst others. There are also a number of matters that must be covered by an enterprise agreement, including dispute resolution processes, and flexibility terms.

Should my business have an enterprise agreement, and why?

Whether an enterprise agreement is right for your business will depend on the circumstances. Employers who have a range of different awards applying to employees in their business may benefit from ‘streamlining’ the rules applying to hours worked, pay rates, and other complex compliance matters. However, the bargaining process can be long and involved, and employers should be mindful that in order for an enterprise agreement to be approved by the Fair Work Commission, employees must be ‘better off overall’. Generally, this means that rates of pay in an enterprise agreement may need to be higher than modern award rates of pay.

Can an employer be forced to bargain for an enterprise agreement without their agreement?

In most cases, employers will have a right to decline to participate in a bargaining process requested by employees. Employers can only be forced to bargain with employees for an enterprise agreement when the Fair Work Commission makes a ‘majority support determination’ (MSD). A MSD is a determination made by the Fair Work Commission if it is satisfied that a majority of employees who will be covered by a proposed enterprise agreement want to bargain. Unless an MSD is made, employers can not usually be forced to bargain for an enterprise agreement.

What does good faith bargaining require?

The enterprise bargaining process requires that bargaining representatives act in ‘good faith.’ That means representatives must:

disclose all relevant information to the other party in a timely matter (aside from confidential or commercially sensitive information);
engage with the other party in an appropriate and timely manner, including by responding to, and giving consideration to any proposals; and
behave in a fair way that upholds the ‘bargaining’ process,

amongst other things. Engaging in good faith bargaining can require significant resources. Many employers look toward engaging support during this process to ensure they are engaging in good faith bargaining, and can keep up with the time and resources involved in the process.