Running a compliant single-enterprise bargaining process
Enterprise bargaining under the Fair Work Act requires employers to notify employees of representational rights, bargain in good faith, hold an access period, run a valid vote, and then lodge for approval. Each step has strict statutory requirements.
This is an 8-step workflow for running a compliant single-enterprise bargaining process from notification of employee representational rights through to Fair Work Commission approval.
Before you start
- Decision to bargain (notification of employee representational rights triggers)
- Identification of the group of employees to be covered
- Mapping of relevant modern awards for BOOT comparison
- Engagement with bargaining representatives (unions, employee reps)
The workflow
Issue the Notice of Employee Representational Rights
Within 14 days of the notification time, issue the NERR in the form prescribed by the Fair Work Regulations. Errors in the NERR can defeat approval.
Identify bargaining representatives
Employees are entitled to appoint bargaining representatives. Default representatives are unions with coverage. Record appointments in writing.
Conduct good faith bargaining
Meet the good faith bargaining requirements — attend and participate in meetings, disclose relevant information, respond to proposals, give genuine consideration, refrain from capricious or unfair conduct.
Prepare the draft agreement
Draft the agreement addressing coverage, nominal expiry, wages, hours, leave, dispute resolution (mandatory), consultation (mandatory), and flexibility term (mandatory).
Run the seven-day access period
Provide employees with the agreement and an explanation of terms for at least seven clear days before voting. Explanations must take account of employees' circumstances.
Conduct the vote
Run a valid vote (ballot or show of hands) of employees who will be covered. A majority of those who cast a vote must approve.
Lodge with the Fair Work Commission
Within 14 days of the vote, lodge Form F16 with the Commission with the agreement, declarations, and supporting material. The Commission conducts the BOOT.
Address undertakings and approval
The Commission may request undertakings to address BOOT concerns. Negotiate undertakings with bargaining representatives. On approval, implement and communicate to employees.
What you will have at the end
A Fair Work Commission-approved enterprise agreement that displaces the modern award for the nominal term (typically 4 years).
Common issues
- NERR defects — wrong form, late issue, or missing representative details
- Access period explanations that are generic and do not address the particular employees
- BOOT failures discovered at the Commission stage requiring undertakings
- Good faith bargaining breaches leading to bargaining orders
- Coverage clauses drafted too broadly or narrowly, creating ambiguity post-approval
Run this workflow on a real matter
Quillio drafts NERRs, access period explanations, and Form F17 declarations calibrated to current Fair Work Commission expectations. See /practice-areas/employment-lawyers.
This workflow is a general guide. Fair Work Act amendments (including Secure Jobs Better Pay and Closing Loopholes) have reshaped bargaining — verify current provisions before commencing.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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