Enterprise bargaining is the process of negotiation generally between the employer, employees and their bargaining representatives with the goal of making an enterprise agreement. The Fair Work Act 2009 establishes a set of clear rules and obligations about how this process is to occur, including rules about bargaining, the content of enterprise agreements, and how an agreement is made and approved.

What is an agreement?

A registered agreement sets out the terms and conditions of employment between an employee or group of employees and one or more employers.

Under the Fair Work Act 2009, the following new enterprise agreements can be made:

Single-enterprise agreement

A single-enterprise agreement is made between a single employer (or two or more single interest employers) and employees employed at the time the agreement is made, and who will be covered by the agreement. Single interest employers are employers that are in a joint venture or common enterprise or are related corporations. They can also be employers authorised as single interest employers by the Fair Work Commission, which may be either franchisees or other employers where the Minister for Employment has made a declaration.

Multi-enterprise agreement

A multi-enterprise agreement is made between two or more employers (that are not all single interest employers) and employees employed at the time the agreement is made and who will be covered by the agreement.

Greenfields agreement

A greenfields agreement is an enterprise agreement that is made in relation to a new enterprise of the employer or employers before any employees are employed. This can either be a single enterprise agreement or a multi-enterprise agreement. The parties to a greenfields agreement are the employer (or employers in a multi-enterprise greenfields agreement) and one or more relevant employee associations (usually a trade union).

What terms must be included in an enterprise agreement?

An enterprise agreement is an agreement about permitted matters which are:

• terms about the relationship between each employer and the employees covered by the agreement
• terms about the relationship between each employer and any employee organisations (e.g. a trade union) who will be covered by the agreement
• deductions from wages for any purpose authorised by an employee covered by the agreement
• how the agreement will operate.

An enterprise agreement must contain the following terms:

• a nominal expiry date for the agreement which is no longer than four years from the date the Fair Work Commission approves the agreement
• a dispute settlement procedure, which must authorise either the Fair Work Commission or someone else that is independent of those covered by the agreement to settle disputes about any matters under the agreement in relation to terms of a modern award or the National Employment Standards (‘NES’)
• a flexibility term that allows for the making of individual flexibility arrangements (IFAs) for the purpose of meeting the genuine needs of the employer and employees. These are arrangements between an employer and an individual employee that vary the operation of the enterprise agreement in relation to the employee (see What is an Individual Flexibility Arrangement? below)
• a consultation term, which requires the employer to consult their employees about any major workplace changes that are likely to have a significant effect on them and allows the employees to have representation in that consultation. If there is no such consultation term, the model consultation term will apply.

The rate of pay for an employee under an enterprise agreement cannot be less than the relevant rate of pay under the modern award that would apply to the employee or under a national minimum wage order.

What can’t be included in an enterprise agreement?

An enterprise agreement cannot include any unlawful content.

This includes:

• a discriminatory term
• an objectionable term (which are terms that require or allow payment of a bargaining services fee, or a contravention of the general protections provisions of the Fair Work Act 2009)
• a term that confers an entitlement or remedy in relation to unfair dismissal before the employee has completed the minimum employment period
• a term that excludes, or modifies, the application of unfair dismissal provisions in a way that is detrimental to, or in relation to, a person
• a term that is inconsistent with the industrial action provisions
• a term that provides for an entitlement to right of entry
• a term that allows for the exercise of any State or Territory OHS legislative right of entry in a manner different to the rights set out in the right of entry provisions of the Fair Work Act 2009.

The Fair Work Commission will review enterprise agreements for any unlawful content. The Fair Work Commission cannot approve an enterprise agreement that contains unlawful content.

Terms in an enterprise agreement and modern awards cannot exclude the NES, and those that do will have no effect.

If you have any questions or would like to speak with one of our solicitors, please contact us.

1. Have you been dismissed from employment?

   If you have been dismissed you may have a claim against your employer, if your employer has breached your contract of employment or broken the law in dismissing you.

   If your employer has broken the law in dismissing you, you may be able to make a claim under the Fair Work Act 2009 (Cth).

   Our unfair dismissal lawyers can assist you if you think you have an unfair dismissal claim against your employer.

2. Am I eligible to make an unfair dismissal claim?

   In order to make a claim you must fall within the scope of the Fair Work Act 2009 (Cth) which means that you must:

   • Be covered by a modern award;
   • Be subject to an enterprise agreement; or
   • Have a salary that does not exceed the maximum income threshold (currently $123,300.00).

   You must also be an employee who has been employed for more than 6 months, or more than 12 months if your employer has fewer than 15 employees.

   We can assist you in determining whether you are a national system employee. We can also assess whether your employment is covered by a modern award or under the maximum income threshold as a result of your salary package structure.

   If, at the time you were dismissed, your employer employed fewer than 15 people (including yourself) then the rules governing unfair dismissal are different. Your employer must have complied with the Small Business Fair Dismissal Code. If the Small Business Fair Dismissal Code has been complied with, you are excluded from making an unfair dismissal claim.

   If your employer claims you were dismissed because of redundancy and the Fair Work Commission finds your dismissal was a case of genuine redundancy, you are not able to bring a claim for unfair dismissal. A person’s dismissal was not a case of genuine redundancy if it would have been reasonable for you to be redeployed within the employer’s business.

   It is a case of genuine redundancy if:

   • Your employer no longer required your job to be performed because of operational changes; and
   • Your employer has complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.

   These exclusions are complicated by any periods of casual employment as well as the specific requirements placed on employers by the Fair Work System.

   We can assist you in determining whether you are eligible to make an application for unfair dismissal or if the redundancy is likely to be a genuine redundancy.

3. What if I resigned from employment?

   If you have been forced to resign, it may still be considered a dismissal. This situation is commonly known as constructive dismissal. An unfair dismissal can include a situation where a person has resigned but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. It is not advisable to resign from employment prior to speaking with an unfair dismissal lawyer as the impact of your resignation will have an effect on your unfair dismissal claim.

   If you have been dismissed, please contact our unfair dismissal lawyers for assistance.

4. Don’t delay; strict time limits apply to FWC matters.

   An employee has only 21 days after the date of the dismissal to make a claim for unfair dismissal. Only in very exceptional circumstances can this time be extended. It is vital to see an unfair dismissal lawyer as soon as possible after your dismissal takes place.

5. Is my dismissal unfair?

   The Fair Work Act 2009 (Cth) lays down the considerations in deciding if a dismissal was unfair. The Fair Work Commission will determine:

   • whether there was a valid reason for the dismissal;
   • whether you were notified of that reason;
   • whether you were able to respond to the reasons given for your dismissal;
   • Whether your employer was unreasonable in refusing you a support person;
   • If your dismissal related to poor performance, whether you had received previous warnings about this;
   • The impact of the size of the business in carrying out the dismissal;
   • Whether your employer had human resources support in carrying out the dismissal; and
   • Any other matters that the Fair Work Commission considers relevant.

   Our unfair dismissal lawyers can provide you with an assessment of your case considering these criteria before lodging an unfair dismissal claim for you.

6. What if my claim is successful?

   If your unfair dismissal claim is successful you may be reinstated to your job, or awarded compensation not exceeding 26 weeks’ pay.

   In making an award of compensation for unfair dismissal, the Fair Work Commission will consider the circumstances of the dismissal, including any contribution you may have had to your own dismissal and any success in returning to the workforce.

   There is no remedy available for shock, distress or humiliation caused to you by the unfair dismissal. The Fair Work Commission will also consider any previous payments provided to the employee.

7. What if my claim is unsuccessful?

   If your unfair dismissal claim is unsuccessful, you will not ordinarily suffer any adverse consequence in relation to the employer’s legal costs of defending the application. In some extreme and unlikely circumstances, costs have been award where the application was frivolous, vexatious or made without reasonable cause or had no reasonable prospect of success.

   It is important that you seek legal advice prior to lodging a claim with the Fair Work Commission. Our unfair dismissal lawyers can provide you with an assessment of your case.

8. What is the difference between unfair dismissal and unlawful dismissal?

   Employees who are ineligible to make an unfair dismissal claim may be able to make an unlawful dismissal claim which otherwise known as a general protection claim. Unlawful termination and general protection claims do not consider whether a dismissal was harsh, unjust or unreasonable, but instead consider whether the reason for the termination was unlawful. An unlawful termination or general protections claim relating to dismissal must be made within 21 days from the date of termination.

If you think you have been unfairly dismissed or you would like advice about your eligibility to make an unfair dismissal claim, you should contact us immediately. Do not delay as you only have 21 days after the date of termination of employment to make a claim for unfair dismissal.