FWC Releases New Guidelines on Workplace Agreements

Thursday 21 February 2019 @ 1.05 p.m. | Industrial Law | Legal Research

In a Media Release, the Fair Work Commission (the “Commission”) has announced the publication of a new Guide to help employers and employees lodge compliant applications for enterprise agreements, including how to avoid the common problems that delay the approval process. The Commission reports the volume of non-compliant agreement applications have more than doubled since 2016.

Object of the Guide

According to the Commission, the object of the new Guide is:

“… to provide information and on-line tools to assist parties to make enterprise agreements and lodge applications for their approval that comply with the Fair Work Act 2009 (Cth) [FW Act] and other relevant legislation”.

With this new information, compliant agreements and associated applications are able to be dealt with more quickly by the Commission. It also provides a detailed description of more than 20 frequently encountered errors in agreement applications and identifies steps to avoid them.

The Commission routinely seeks to work with parties to remedy these defects rather than the alternative option of dismissing the applications, which would require the parties to recommence bargaining.

A Brief Overview

The information provided by the Guide focuses on the making of single enterprise agreements and subsequent approval applications and:

  • aims to resolve issues concerning agreements and approval applications;
  • outlines the Commission’s process for dealing with applications to approve agreements;
  • explains the agreement triage process;
  • summarises changes to the statutory framework; and
  • provides information about how long the Commission takes to approve agreements.

Process Improvements

The Commission has indicated they have taken a number of steps to assist parties lodge compliant agreements and approval applications, and intend to introduce further initiatives “to improve timeliness performance by increasing the level of compliance at lodgment.”

Recent improvements have included:

  • a range of information resources and tools, including an online tools to help parties prepare statutory notices and calculate key time-frames in the agreement making process;
  • a “hot button” for parties to seek an update on the progress of their application; and
  • an outreach program that allows organisations involved in the agreement-making process to meet with Members of the Commission to discuss the process and common issues.

The Current Statutory Framework

Prior to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) (which commenced on 12 December 2018), the Commission had no capacity to approve agreements where there had been certain errors in the agreement-making process under the FW Act. Minor defects in relation to the content or form of the Notice of Employee Representational Rights and failure to meet some required time-frames were some of the errors which were noted.

The amending Act allows Members of the Commission to overlook some minor procedural or technical errors when approving enterprise agreements.

Further Time-Saving Methods to be Rolled Out

The Commission indicates a prototype of a “smart form” for approval applications will soon be available  to the Agreements User Group - see pg 7, para 43 of theGuide:

“… As an applicant completes the form it will alert them if certain time-frames specified in the FW Act have not been met, so that they are aware of any such issues before completing the application …”

The Agreements User Group was established by the Commission and met for the first time on 19 February 2019. It comprises employers and organisations that lodged, or are associated with, the greatest number of agreement applications in 2018.

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