Requirements an agreement must meet

A Commission Member will assess the agreement against the Fair Work Act 2009.

The employer must:

• meet all relevant timeframes to make an agreement
• give a valid Notice of Employee Representational Rights (NERR) (not for greenfields agreements)
• give a good explanation of the agreement to employees – section 180(5) of the Fair Work Act.

The agreement must:

• be signed and dated in the right way – section 185(2) of the Fair Work Act
• not exclude the National Employment Standards or any provision of those standards – sections 55 and 56, section 182(2)(c), section 196 and section 253 of the Fair Work Act
• cover employees who the employer chose in a fair way – section 186(3) of the Fair Work Act
• pass the Better Off Overall Test – section 186(2)(d) of the Fair Work Act
• have a correct nominal expiry date – section 186(5) of the Fair Work Act
• include the mandatory terms – section 186(6) of the Fair Work Act
• meet the needs of particular kinds of employees – section 187(4) of the Fair Work Act
• have the genuine agreement of the employees it covers (not for greenfields agreements) – section 186(2)(a) and section 188 of the Fair Work Act
• be consistent with good faith bargaining, if a scope order is in place – section 187(2) of the Fair Work Act
• not include any terms that are unlawful or designated outworker terms – section 186(4 and 4A) of the Fair Work Act.

Multi-enterprise agreements must meet extra requirements. The Member must be satisfied that:

• Each employer the agreement covers made a genuine agreement.
• No-one forced, or threatened to force, any of the employers to make the agreement unless permitted by the Fair Work Act – section 186(2)(b) and section 186(2AA) of the Fair Work Act.
• The employer varied the agreement if not all employees of all employers approved it – section 187(3) of the Fair Work Act.

Greenfields agreements must meet additional requirements. The Member must be satisfied that:

• The unions under the agreement represent the interests of a majority of the employees who the agreement covers. Also, these unions must cover the employees for work they do under the agreement – section 187(5)(a) of the Fair Work Act.
• It is in the public interest to approve the agreement – section 187(5)(b) of the Fair Work Act.
• (single enterprise agreements only) Overall, the pay and conditions are consistent with the relevant industry for the same work. ‘Consistent’ may relate to the geographical area – section 187(6) of the Fair Work Act.