Disclosure rules during enterprise bargaining

If an employer or a registered organisation is a bargaining representative for a proposed enterprise agreement, they must disclose certain financial benefits (disclosable benefits) they, or parties closely connected with them, may receive under that agreement. Employees who will be covered by the agreement must have access to the disclosure document before they vote on the proposed agreement.

Failure to comply with disclosure requirements may give rise to a fine of up to 60 penalty units for a person and 300 penalty units for a body corporate. However, a contravention of the disclosure requirements will not preclude the Commission from approving an enterprise agreement. 

Disclosable benefits for a registered organisation

A disclosable benefit for an organisation is a financial benefit, that will be (or could reasonably be expected to be)

• received as a direct or indirect consequence of one or more terms of the proposed agreement
• received by the organisation or a related party of the organisation.

But does not include a financial benefit that is:

• payable to an individual as an employee (covered by the agreement)
• payment of a fee for membership of the organisation.

See section 179 of the Fair Work Act for more information. 

Disclosable benefits for an employer

A disclosable benefit for an employer is a financial benefit, that will be (or could reasonably be expected to be):

• received as a direct or indirect consequence of one or more terms of the proposed agreement
• received by the employer or an associated entity of the employer.

But does not include a financial benefit that is received in the ordinary course of business.

See section 179A of the Fair Work Act for more information. 

Prepare a disclosure document

Organisations and employers who may receive a disclosable benefit must prepare a disclosure document as prescribed by schedule 2.1A of the Fair Work Regulations 2009.

It may be necessary for more than one registered organisation, or employer, to prepare separate disclosure documents relating to benefits they may receive.  

Access the document in Schedule 2.1A—Document for disclosure of benefits.

The disclosure document must include:

• the beneficial terms of the proposed agreement
• the nature and the amount of each benefit
• the name of each beneficiary
• the name of the person providing the benefit.

The organisation and employer must not knowingly or recklessly make a false or misleading representation in a disclosure document.

Provision of an organisation’s disclosure document

A registered organisation's obligation is to provide any disclosure document that they have prepared to each employer covered by the proposed agreement no later than the end of the fourth day of the access period.

It will be the employer's responsibility to provide the disclosure document to their employees (along with any other disclosure documents that have been prepared). 

Provision of an employer's disclosure document

An employer who is required to prepare a disclosure document, or who has received a disclosure document from an organisation, must take all reasonable steps to ensure that any of its employees who are covered by the proposed agreement receive a copy or have access to it.

An employer's disclosure document must be given to relevant employees, or access provided to it, by no later than the end of the fourth day of the access period. An organisation's disclosure document must be given to relevant employees, or access provided to it, as soon as reasonably practicable after it is received by the employer.

If access to a disclosure document is given to an employee, the employee must have access to that copy throughout the remainder of the access period for the agreement.

Access period

The access period is the 7-day period immediately before voting for the agreement commences.