See Fair Work Act 2009 s.188(1)
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the Fair Work Commission is satisfied that:
- the employer, or each of the employers, covered by the agreement:
- took all reasonable steps to ensure that during the access period for the agreement, the employees were given a copy of the written text of the agreement, and any other material incorporated by reference in the agreement or that the employees had access through the access period to those materials
- took all reasonable steps to notify the employees, by the start of the access period for the agreement, of the time and place at which the vote will occur and the voting method
- took all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to the employees and the explanation was provided in an appropriate manner, taking into account the particular circumstances and needs of the relevant employees, and
- did not request the employees to approve the enterprise agreement until 21 clear days after the last notice of employee representational rights was given;
- the agreement was made:
- if the proposed agreement is a single-enterprise agreement – when a majority of those employees who cast a valid vote approved the agreement, or
- if the proposed agreement is a multi-enterprise agreement – when a majority of the employees of at least one employer who cast a valid vote approved the agreement; and
- there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
Evidence that the terms of the agreement have been explained
A simple statement by an employer that an explanation has been given is not enough to satisfy the Commission that the requirement to explain the terms of the agreement has been met. In order to be satisfied, the Commission must consider the content of the explanation and the way it was given, having regard to all the circumstances and needs of the employees, and the nature of the changes made by the agreement.[1]
To help show that the employer has met this requirement they should provide:
- evidence of how the terms of the agreement, and the effect of those terms, were explained to the relevant employees
- copies of any comparison between the agreement and the relevant modern award, and
- evidence of how the explanation was provided in an appropriate manner, taking into account the particular circumstances and needs of the relevant employees.
Tip: Provide all supporting material