Changes to making agreements

This change applies to agreements where employees were requested to vote on the agreement on or after 1 July 2024. 

Delegates’ rights term

Under the Closing Loopholes Act, a delegates’ rights term has been added to the terms that must be included in an enterprise agreement.

A delegates’ rights term is about the exercise of the rights of workplace delegates. It must provide for at least the delegates’ rights at section 350C of the Fair Work Act 2009 (Cth).

The Commission will assess the delegates’ rights term in an agreement against the same term in any modern awards that cover the workplace delegates.

If the agreement delegates’ rights term is less favourable than the modern award delegates’ rights term, then:

• the modern award term will apply AND
• the agreement term will have no effect AND
• if the agreement is approved, this will be noted in the approval decision.

If more than one modern award covers the workplace delegates, the most favourable delegates’ rights term of those awards will apply.

The Commission may still approve an agreement without a delegates’ rights term if:

• employees were asked to vote on the agreement before 1 July 2024; AND
• by that vote, the employees approve the agreement (this can occur on or after 1 July 2024).

Statement of Principles on Genuine Agreement

The Commission must take into account a Statement of Principles when determining whether an enterprise agreement has been genuinely agreed to by the employees. 

These principles provide guidance to employers about what they must do to ensure employees have genuinely agreed to the agreement.

Employees who vote for an agreement must have:

• sufficient interest in the agreement, and 
• must be sufficiently representative of the coverage of the agreement.

Changes to the better off overall test (the BOOT) will allow the Commission to:

• amend an agreement after it’s lodged, if the Commission is of the view that it doesn’t pass the BOOT, or
• reconsider an agreement after it has been approved, if relevant circumstances were not properly considered or if circumstances have changed.

The legislation will also be updated to include the following factors:

• that the Commission must make a global assessment about whether any reasonably foreseeable employee is better off under the enterprise agreement than if the modern award applied

and that we are required to consider factors such as:

• the more and less beneficial terms of the agreement compared to the relevant modern award
• the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time the agreement is made
• the views of the employer(s), employees and bargaining representatives, including giving primary consideration to a common view (if any) of bargaining representatives about whether the agreement passes the BOOT.

From 6 June 2023, there will be 3 types of multi-enterprise agreements:

• Supported bargaining agreements 
• Single interest employer agreements 
• Cooperative workplaces agreements.

Multi-enterprise agreement voting requests

Before requesting employees to vote on a multi-enterprise agreement or multi-enterprise agreement variation, an employer must have:

• agreement in writing to the making of the request from all relevant employee organisations, or
• a voting request order. 

A voting request order can be made by the Commission on application. An order would permit an employer to make the request for employees to vote. 

From 27 February 2024, an employer may transition from a supported bargaining agreement or a single interest employer agreement that has not yet passed its nominal expiry date, to a single enterprise agreement.

Before requesting employees to vote on a single enterprise agreement, an employer must have:

• agreement in writing to the making of the request from all relevant employee organisations covered by the supported bargaining agreement or single interest employer agreement, or
• a voting request order.

Which test applies will depend on when you started bargaining and when the agreement was made. Use our tool to Understand the tests that apply to your agreement.