When is an agreement made?

If the employees of the employer (or each employer) who will be covered by a proposed single-enterprise agreement have been asked to approve the agreement, the agreement is made when a majority of those employees who cast a valid vote approve the agreement.[1]

The question of when an agreement is made determines the timeframe for making an application to the Fair Work Commission to approve the agreement.

In relation to multi-enterprise agreements, each of the employers bargaining for the multi-enterprise agreement asks their employees to vote to approve the agreement.

If the employees of each of the employers that will be covered by a proposed multi-enterprise agreement have been asked to approve the agreement, and a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement, the agreement is made immediately after the end of the voting process.[2]

The emphasis on the end of the voting process reflects the fact that for a multi-enterprise agreement there may be some enterprises where the vote is against approval of the agreement and some where the vote is to approve the agreement. In such a case, the multi-enterprise agreement is only made in relation to those employers a majority of whose employees approved the agreement.[3]

Multi-enterprise agreement to be varied if not all employees approve agreement

If a multi-enterprise agreement is made but the agreement was not approved by employees of all of the employers proposed to be covered by the agreement, then a bargaining representative must vary the agreement so that the agreement is expressed to cover only each employer whose employees did approve the agreement and their employees.[4]

The bargaining representative who varies the agreement must give written notice of the variation to all the other bargaining representatives for the agreement of whom that bargaining representative is aware. The notice must specify the employers and employees that the agreement as varied covers.[5]

Made by signing

A greenfields agreement is made when it has been signed by each employer and each relevant union that the agreement is expressed to cover (which need not be all of the relevant unions for the agreement).[6]

Made by lodgment after end of notified negotiation period

If a proposed single-enterprise agreement is a greenfields agreement that has not been made by being signed by each employer and each relevant union that the agreement is expressed to cover, and:

• there has been a notified negotiation period for the agreement which has ended, and
• the employer or employers that were bargaining representatives for the agreement (the relevant employer or employers) gave each of the unions that were bargaining representatives for the agreement a reasonable opportunity to sign the agreement, and
• the relevant employer or employers apply to the Commission for approval of the agreement;

then the agreement is taken to have been made by the relevant employer or employers, with each of the unions that were bargaining representatives for the agreement, when the application is made to the Commission for approval of the agreement.[7]

Related information

• Notified negotiation period for a proposed single-enterprise agreement that is a greenfields agreement