Enterprise bargaining and enterprise agreement changes
Published 12 April 2024
Learn about changes to enterprise bargaining and enterprise agreements.
On this page:
- Enterprise bargaining
- Enterprise agreement model terms
- Compulsory conciliation conferences in protected action ballot matters
- Technical change to Fair Work Act
- Tools and resources
- Related information
Enterprise bargaining
These changes started on 27 February 2024.
The new laws change some enterprise bargaining processes.
The Fair Work Commission (the Commission) gives information on existing enterprise bargaining processes: Make an enterprise agreement.
Franchisee bargaining for single enterprise agreements
A franchisee is an individual, partnership or company that operates under the name of an already established business.
A franchisor is the owner of the license of the brand or business being franchised.
Multiple franchisees of the same franchisor (or related bodies corporate of the same franchisor) are now allowed to bargain together for a single enterprise agreement when they carry on similar business activities under the same franchise. This allows franchisees with common interests to bargain once together, rather than bargain separately.
Franchisees can still bargain separately to make single enterprise agreements or bargain for a multi-enterprise agreement.
Example: Franchisee bargaining
Punja works for a fast food franchise. Multiple franchisees of this franchise have separate enterprise agreements for each store.
When the existing enterprise agreements expire for the various stores, Punja chats with employees from these stores. She suggests they bargain together for a new single enterprise agreement. The employees support the proposal.
After talking with the employees, Punja then talks with the franchisee owners about employees bargaining together. The owners also agree to this process.
Punja and the other employees next apply for a single enterprise agreement that covers all their stores so they can bargain together. This means that the new agreement will cover all the stores that are:
- involved in the joint bargaining process
- run by franchisees of the same franchisor that carry on business activities under the same franchise.
The stores that bargain together will vote together. Only one ballot needs to be issued.
Transition from multi-enterprise agreements
Previously, there were bargaining rules that applied to employers and employees who were covered by agreements covering multiple businesses. These agreements still exist and are called:
- single interest employer agreements
- supported bargaining agreements.
Under these previous rules, an agreement had to expire before it could be changed to an agreement that only covered a single business (single enterprise agreement).
New rules now allow employers and employees covered by single interest or supported bargaining agreements to transition to a single enterprise agreement. This is subject to:
- a vote by employees
- the approval of the agreement by the Commission that the new agreement wouldn’t leave employees worse off.
When an agreement hasn’t passed its nominal expiry date, some rules apply concerning unions and employers. This includes that all unions that the agreement applies to must give written agreement to an employer before the employer can request employees approve a new single enterprise agreement.
Example: Multi-enterprise agreement to single enterprise agreement
A group of Catholic high schools are covered under a multi-enterprise agreement.
One of the high schools wants to have their own enterprise agreement. This is because their employees want to bargain for different conditions to the other schools.
The employees at this high school agree to bargain separately.
When the existing agreement is getting close to the expiry date, this high school bargains separately. Eventually, a single enterprise agreement is voted on by the employees and approved by the Commission.
Intractable bargaining declarations
During bargaining for an enterprise agreement, parties (such as employers or unions) can make applications for intractable bargaining declarations when they can’t progress the bargaining and a resolution can’t be reached.
If the Commission issues a declaration and the parties still can’t resolve the dispute, the Commission must make an intractable bargaining workplace determination.
There have been changes to intractable bargaining laws.
The new laws mean that when the Commission makes an intractable bargaining workplace determination:
- the Commission must include agreed terms (with other criteria applying)
- any terms the Commission includes (other than wage increase terms) that haven’t been agreed between the parties can’t be less favourable to employees or unions than terms in existing applicable enterprise agreements (with other rules applying).
Enterprise agreement model terms
This change starts by proclamation or no later than 26 February 2025.
Currently, the Fair Work Regulations set out model enterprise agreement terms on:
- flexibility
- consultation
- dispute resolution.
The new laws transfer the responsibility for making these terms to the Commission.
When reviewing model terms, the Commission will have to consider a range of issues. This includes best practice and stakeholder views.
Compulsory conciliation conferences in protected action ballot matters
This change started on 15 December 2023.
A protected action ballot is a secret vote by eligible employees on whether they want to take industrial action for a proposed enterprise agreement.
Where the Commission has made a protected action ballot order in relation to a proposed enterprise agreement, they’re required to make an order directing all bargaining representatives for the proposed agreement to attend a mediation or conciliation conference.
This change means that for the subsequent employee claim action or employer response action to be protected, the following must have attended the mediation and conciliation conference:
- the employee bargaining representatives who applied for a protected action ballot order (not necessarily all employee bargaining representatives for the agreement)
- the employer and any bargaining representative of the employer.
We’ve updated our Industrial action and protests page to reflect the changes.
Technical change to Fair Work Act
These changes started on 27 February 2024.
The new laws remove a clause from the Fair Work Act about certain applications to the Commission relating to awards that no longer has any effect.
The Fair Work Act temporarily gave the power to the Commission to dismiss applications to vary, revoke or make an award if the matters outlined in the application had been or were already being dealt with in a 4 yearly review. This power expired on 1 January 2020.
This clause has now been removed.
Tools and resources
- Agreements and bargaining timeline
- Closing Loopholes – what’s changing
- Department of Employment and Workplace Relations – Closing Loopholes fact sheets
- Fair Work Regulations
