Moores recently hosted a seminar alongside staff of the Fair Work Commission (Commission) to discuss the Enterprise Bargaining Agreement (EBA) approvals process and debunk some of mystery around how the Commission assesses applications.

An EBA is a registered agreement which sets out the terms and conditions of employment between a group of employees and one or more employers. Once approved by the Commission, EBAs have the effect of prevailing over Modern Awards that may otherwise cover employees unless the Modern Award is incorporated into the EBA.

Under the Fair Work Act 2009 (Cth) (Act), the Commission can only approve an EBA if it is satisfied that the Agreement:

  1. has been genuinely agreed to
  2. covers a group of employees who were fairly chosen
  3. passes the better off overall test
  4. only includes permitted matters
  5. includes all mandatory terms, and
  6. includes no unlawful terms.

The Act sets out specific time frames which organisations must comply with when negotiating and drafting an EBA. The consequences of non-compliance with the Act can result in significant delays in the process and even the EBA being rejected by the Commission.

Our top tips for ensuring you have the best prospects of having your EBA approved by the Commission, are:

  1. understand and comply with the timeframes set out in the Act – we recommend organisations have a bargaining plan which sets out key milestones throughout the process;
  2. provide employees with the correct Notice of Employee Representational Rights in the form as prescribed by the Fair Work Regulations 2009 (Cth);
  3. include enough information in your application so the Commission understands how your business operates and what steps were taken during the EBA process; and
  4. be sure to submit all the required forms to the Commission with supporting documents.

Alert:

Currently the Fair Work Commission is trialling a new system which will enable organisations lodging an EBA to complete and submit all necessary documents on-line by using a smart form system. The system will assist parties to lodge compliant applications by:

  • prompting users for mandatory information
  • alerting users when dates entered may not meet statutory timeframes or when questions have not been answered, and
  • allowing frequent users to create template versions of the forms with common information saved for re-use.

Organisations can take part in the trial during October and November ahead of an expected roll out of the system in late 2019.