Bargaining and enterprise agreements. From the first request to approval.

1. An enterprise agreement is made under Part 2-4 about permitted matters, which include matters about the relationship between the employer and the union that will be covered (s 172(1)).
2. A single-enterprise agreement is made by one employer, or two or more related employers, with the employees employed when it is made who will be covered (s 172(2)(a), (5A)).
3. A multi-enterprise agreement is one of three types, depending on what was in operation just before it was made (s 12):
   1. a supported bargaining agreement, if a supported bargaining authorisation was in operation;
   2. a single interest employer agreement, if a single interest employer authorisation was in operation;
   3. a cooperative workplace agreement, if neither was.
4. A greenfields agreement is made with one or more unions for a genuine new enterprise before anyone necessary for its normal conduct is employed (s 172(2)(b), (4)). See "Greenfields agreements" below.
5. An agreement cannot be made with a single employee (s 172(6)).

While a single interest or supported bargaining authorisation that specifies an employer is in operation, that employer may make only that kind of agreement with the specified employees, and must not initiate, agree to or be required to bargain for any other kind (s 172(5), (7)). The Full Court has described these streams as a departure from agreements arising from the joint will of employers and employees at the enterprise level: an authorisation can, in effect, be imposed on employers and limits whom they bargain with (Ulan Coal Mines Pty Ltd v APESMA [2025] FCAFC 127 at [14]; Ardeen Pty Ltd v SDA [2026] FCAFC 93 at [8]).

No authorisation may be made for an agreement covering general building and construction work (ss 243A(4), 249A), and a multi-enterprise agreement that is not a greenfields agreement cannot be approved if it covers that work (s 186(2B)).

Bargaining for a proposed agreement formally starts at the notification time, which is when (s 173(2)):

1. the employer agrees to bargain, or initiates bargaining (s 173(2)(a));
2. the employer receives a written request to bargain under s 173(2A) (s 173(2)(aa));
3. a majority support determination comes into operation (s 173(2)(b));
4. a scope order comes into operation (s 173(2)(c));
5. a supported bargaining authorisation, or a single interest employer authorisation, that specifies the employer comes into operation (s 173(2)(d), (e)).

The notification time starts the 14 days for the NERR (s 173(3)), and, outside the authorisation streams, the 9-month minimum bargaining period for an intractable bargaining declaration (s 235(6)(b)).

A bargaining representative of an employee who will be covered may give the employer a written request to bargain for a proposed single-enterprise agreement if (s 173(2A)):

1. the proposed agreement will replace an earlier single-enterprise agreement that has passed its nominal expiry date;
2. a single interest employer authorisation did not cease to operate because the earlier agreement was made;
3. no more than 5 years have passed since the nominal expiry date;
4. the proposed agreement will cover the same, or substantially the same, group of employees.

The employer's receipt of the request is the notification time (s 173(2)(aa)), and it is also a trigger for a bargaining order (s 230(2)(aa)). No majority support determination is needed.

1. For a proposed single-enterprise agreement that is not a greenfields agreement, the employer must take all reasonable steps to give the NERR to each employee who will be covered and is employed at the notification time (s 173(1)). No NERR is required for a multi-enterprise or greenfields agreement.
2. The notice must contain the prescribed content, "not contain any other content", and be in the prescribed form (s 174(1A)). The form is Schedule 2.1 of the Fair Work Regulations 2009 (reg 2.05).
3. Among other things, the notice must explain that a member of a union entitled to represent them in the work, who appoints no one else, will be represented by the union (s 174(3)).
4. The Full Bench has held that the template must be followed exactly: "There is simply no capacity to depart from the form and content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity" (Application by Peabody Moorvale Pty Ltd [2014] FWCFB 2042 at [46]). The 21-day wait in s 181(2) runs only from a valid notice (at [44]-[45]).
5. That strict line is now softened. The Commission may disregard "minor procedural or technical errors" about the notice if satisfied the employees were not likely to have been disadvantaged (s 188(5)). Under the earlier version of this power, the Full Bench said a failure to give the notice within 14 days is a procedural error, a departure from the form is a technical error, and whether an error is minor is an evaluative judgment (Huntsman Chemical Company Australia Pty Ltd [2019] FWCFB 318 at [117]).
6. A notice given early does not by itself start bargaining; bargaining starts when the employer agrees to or initiates it (CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940 at [41]).

For an agreement that is not a greenfields agreement, a union is the bargaining representative of each member who will be covered (s 176(1)(b)), subject to these limits:

1. the union must be "entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement" (s 176(3)), which is a question of its eligibility rules;
2. the member may appoint someone else in writing, including themselves (s 176(1)(c), (4)), from the day the instrument specifies (s 178(1));
3. the member may revoke the union's status by a written instrument, a copy of which goes to the employer (s 178A(2), (3)(a));
4. for a supported bargaining agreement, only a union that applied for the authorisation is a default bargaining representative of its members (s 176(1)(b)(ii)).

The status does not depend on the employer's notice. "The position of the Respondent as bargaining representative is not determined by the NERR or after the NERR has been issued", and a union may make applications before a notice is issued (Appeal by Mermaid Marine Vessel Operations Pty Ltd [2014] FWCFB 1317 at [97]).

A bargaining representative must be free from control by, and improper influence from, the employer or another bargaining representative (Fair Work Regulations reg 2.06). A "removed person" under the CFMEU construction and general division administration must not act or hold out as a bargaining representative unless the Commission grants a fit and proper person certificate (s 177A).

Every bargaining representative must meet the good faith bargaining requirements (s 228(1)):

1. attending, and participating in, meetings at reasonable times;
2. disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
3. responding to proposals made by other bargaining representatives in a timely manner;
4. giving genuine consideration to the proposals of other bargaining representatives, and giving reasons for its responses;
5. refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
6. recognising and bargaining with the other bargaining representatives.

They do not require a bargaining representative to make concessions, or to reach agreement (s 228(2)).

1. An open mind. The Federal Court has said a bargaining representative must approach bargaining with "a genuine (or 'good faith') objective or intention of concluding an 'enterprise agreement' – if possible", though it is "certainly not required to put self-interest to one side" (Endeavour Coal Pty Ltd v APESMA [2012] FCA 764 at [34]). A Full Bench quoted and adopted that passage (APESMA v Peabody Energy Australia Coal Pty Ltd [2015] FWCFB 1451 at [19]).
2. The whole picture. Compliance "will rarely be decided by reference to one action or series of actions" (CFMEU v Tahmoor Coal Pty Ltd [2010] FWAFB 3510 at [24]).
3. An employer talking to staff. An employer trying to persuade employees to a view different from the union's does not necessarily breach the requirements, particularly where the proposals were the same as those at the table, the material was not misleading and the union had access to the workforce (Tahmoor at [29]).
4. A vote without the union's agreement. "There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot", although in some circumstances a ballot without it may breach the requirements (Tahmoor at [30]). For a multi-enterprise agreement, and for some single-enterprise agreements, the Act now requires each union's written agreement or a voting request order before a vote (ss 180A, 180B).
5. When a determination is made. "In the absence of a 'majority support determination' being made under s 237, an employer need not bargain", but once one is made the requirements apply and a bargaining order may enforce them (Endeavour Coal at [44]).

1. Standing. Any bargaining representative for the proposed agreement may apply (s 229(1)). For a multi-enterprise agreement, only while a supported bargaining or single interest employer authorisation is in operation (s 229(2)).
2. Timing. If an agreement still applies to employees who will be covered, the application may be made only no more than 90 days before its nominal expiry date, or after the employer has asked employees to vote and before approval (s 229(3)(a)). Otherwise it may be made at any time (s 229(3)(b)).
3. Notice of concerns. Unless the Commission considers it appropriate in all the circumstances to consider an application that does not comply with (b) or (c) (s 229(5)), the applicant may apply only if it (s 229(4)):
   1. has concerns that a bargaining representative has not met the requirements, or that multiple representatives are making bargaining inefficient or unfair;
   2. has given the relevant bargaining representatives a written notice setting out those concerns;
   3. has given them a reasonable time to respond;
   4. considers they have not responded appropriately.
4. A trigger. The employer has agreed to or initiated bargaining, has received a s 173(2A) request, or a majority support determination, scope order or authorisation is in operation (s 230(2)).
5. Satisfaction. The Commission must be satisfied of a breach of the requirements (or of the multiple-representative problem), that s 229(4) was complied with or excused, and that the order is reasonable in all the circumstances (s 230(1), (3)).

The reasonable time is a real hurdle. In Health Services Union v Healius Pathology Pty Ltd [2025] FWC 3858, a single-member decision, an application filed about 24 hours after the notice did not give a reasonable time, and "That is sufficient to dismiss the HSU application" (at [28]). The Commissioner also refused it on the merits (at [35]). An interim order needs the same satisfaction as a final one (at [20]).

1. An order may specify actions to ensure the requirements are met, requirements not to engage in capricious or unfair conduct, and actions to deal with its effects (s 231(1)).
2. Kinds of order expressly allowed include excluding a bargaining representative, and an order that an employer not dismiss, or reinstate, an employee where the dismissal would be or relate to a breach of the requirement in s 228(1)(e) (s 231(2)).
3. An order cannot require a concession. An order to list what the employer "would be prepared to include" was beyond power (Endeavour Coal at [62]), but an order "incidental to the bargaining process" that preserved "the integrity of the bargaining process" was within power (at [70]).
4. An order operates until it is revoked, the agreement is approved, a workplace determination covers the employees, or the representatives agree bargaining has ceased (s 232). Contravening it is a civil remedy provision (s 233), and it can bind a union as well as an employer.

Where an employer needs a union's written agreement before a vote and a union does not give it, a bargaining representative may apply for a voting request order (s 240A). The Commission must make the order if satisfied that each union's failure to agree was unreasonable in the circumstances and, for a proposed agreement, that the vote would not be inconsistent with or undermine good faith bargaining (s 240B). No Full Bench decision on these sections was found for this page.

1. A bargaining representative of an employee who will be covered applies, specifying the employers and the employees who will be covered (s 236(1), (2)). No application may be made while a supported bargaining authorisation specifies the employee, or while an in-term single interest or supported bargaining agreement applies (s 236(1A), (1B)).
2. The Commission must make the determination if satisfied that (s 237(2)):
   1. a majority of the employees employed at a time it determines, and who will be covered, want to bargain;
   2. the employer has not yet agreed to bargain, or initiated bargaining, for the agreement;
   3. the group was fairly chosen, taking into account, where not all employees are covered, whether the group is geographically, operationally or organisationally distinct (s 237(3A));
   4. it is reasonable in all the circumstances.
3. It comes into operation on the day it is made (s 237(4)). That is a notification time, so the employer then has 14 days for the NERR (s 173(2)(b), (3)), and a bargaining order may follow (s 230(2)(b)).

1. Standing. Once a union is validly a bargaining representative for at least one employee, "its standing to make application under s 236 is established", and alignment between the employees and its eligibility rule "is neither here nor there" (ResMed Ltd v AMWU [2015] FCAFC 195 at [17], [18]).
2. When the majority is measured. The power to fix a time is "directed to fixing the time at which the FWC is to determine who are the persons employed only"; whether a majority want to bargain "is to be made on the basis of the most current material available at the time of the decision" (Kantfield Pty Ltd v AWU [2016] FWCFB 8372 at [35], [37]).
3. Method. The Commission may use any method it considers appropriate (s 237(3)). In a single-member decision, the Deputy President said petitions "can be an acceptable method" and that he "would incline to the view" that an unredacted copy to the Commission and a redacted copy to the employer would ordinarily suffice. He said it was "not necessary for me to determine this question", so it is obiter (NUW v Lovisa Pty Ltd [2019] FWC 2571 at [66], [67]).
4. No prediction of the outcome. "The making of a majority support determination does not pre-suppose that an enterprise agreement will be made containing particular terms. It does not pre-suppose that an enterprise agreement will be made at all" (Alcoa of Australia Ltd v CFMEU [2015] FWCFB 1832 at [31]).

1. A bargaining representative has concerns that bargaining is not proceeding efficiently or fairly because the agreement will not cover appropriate employees, or will cover inappropriate ones (s 238(1)). Not while an in-term single interest or supported bargaining agreement applies (s 238(2)).
2. It takes all reasonable steps to give the relevant bargaining representatives a written notice of the concerns, gives them a reasonable time to respond, and considers they have not responded appropriately (s 238(3)). Unlike s 229(5), the section has no express power to excuse this.
3. The Commission may make the order if satisfied that (s 238(4)):
   1. the applicant has met, or is meeting, the good faith bargaining requirements;
   2. the order will promote the fair and efficient conduct of bargaining;
   3. the group is fairly chosen, taking distinctness into account where not all employees are covered (s 238(4A));
   4. it is reasonable in all the circumstances.
4. The order operates until revoked, the agreement is approved, a workplace determination covers the employees, or bargaining is agreed to have ceased (s 239). On making it the Commission may vary other orders, including protected action ballot orders (s 238(7)).

1. "Promote" carries "the notion of advancement", and an order needs a level of satisfaction that it "is objectively justified" (BRB Modular Pty Ltd v AMWU [2015] FWCFB 1440 at [9], [19]).
2. More than one grouping can be fairly chosen; geographical distinctness "is concerned with the geographical separateness of the employer's various worksites or work locations, not a separation of a few hundred metres within the same work site" (Appeal by The Australian Workers' Union [2014] FWCFB 1476 at [13], [18]).
3. "the preferences of employees as to the appropriate collective should be respected unless there is some good reason under the legislation to decide otherwise" (AWU at [29]); but the section does "not assign priority to the views of employees" (United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009 at [53]).
4. Where the employer and a union both apply, each proposed scope must be considered; granting one without considering the other "involved error" (AWU at [42]).

1. The main case. On an application by a bargaining representative or an eligible union (s 242), the Commission must make the authorisation if satisfied that at least some of the employees are represented by a union, and that it is appropriate for the employers and employees to bargain together, having regard to (s 243(1)):
   1. the prevailing pay and conditions in the industry or sector, including whether low rates of pay prevail;
   2. whether the employers have clearly identifiable common interests, which may include being substantially funded by the Commonwealth, a State or a Territory (s 243(2)(c));
   3. whether the likely number of bargaining representatives is consistent with a manageable process;
   4. any other matters it considers appropriate.
2. A declared sector. The Commission must also make an authorisation for employees in an industry, occupation or sector the Minister has declared (s 243(2A), (2B)).
3. A replacement agreement. Since 7 July 2026, it must also make one where (s 243(2C)):
   1. the proposed agreement will replace an earlier supported bargaining agreement;
   2. the application is by a union that was a bargaining representative for the earlier agreement;
   3. the application is made no earlier than 3 months before, and no later than 2 years after, the earlier agreement's nominal expiry date;
   4. the coverage is the same, or substantially the same.

For a replacement agreement, the Commission must make the authorisation "as quickly as possible" (s 243(2D)). No decision applying these new provisions was found for this page.

1. An employee covered by a single-enterprise agreement that has not passed its nominal expiry date cannot be specified (s 243A(1), (2)), unless the employer's "main intention" in making that agreement was to avoid being specified (s 243A(3)).
2. An employer may ask to be left out of a replacement authorisation because of a change in its circumstances (s 243A(3A)).

In the early childhood education and care application, the first under the amended section, the Full Bench held that (Application by UWU, AEU and IEU [2023] FWCFB 176):

1. the s 243(1)(b) matters call for a broad evaluative judgment, none determinative (at [29]);
2. prevailing pay is assessed across the industry or sector, not only the named employers (at [30]);
3. low rates of pay prima facie prevail where employees are predominantly paid at or close to the award rates for their classification (at [32]);
4. common interests extend to "any joint, shared, related or like characteristics, qualities, undertakings or concerns" (at [34]);
5. manageability is about the process, not the prospect of agreement (at [36]).

In the Victorian disability services application the Full Bench left out three employers not covered by old agreements, finding it not appropriate for them to bargain with employers that were (Health Services Union & Australian Education Union [2025] FWCFB 131 at [333]-[337]). The McDonald's South Australian licensees decision is a case study on the companion page.

1. The authorisation operates from the day it is made (s 243(4)); the employers may then make only a supported bargaining agreement with those employees (s 172(7)).
2. The union that applied is a bargaining representative of its members, and is taken to represent non-members too, unless they belong to another applicant union, appoint someone else or revoke its status (s 176(1)(b)(ii), (2)). A union that did not apply is not the default bargaining representative of its own members while the authorisation operates; it may represent them if appointed in writing under s 176(1)(c).
3. Bargaining orders and intractable bargaining become available (ss 229(2), 234(2)), and the 9-month minimum period runs from the day the authorisation first comes into operation (s 235(6)(a)).
4. The Commission may assist on its own initiative, and may direct a person who is not a specified employer to attend a conference if it controls the employees' terms and conditions to the degree that its participation is necessary for an agreement (s 246(3)). It cannot arbitrate on that basis (note to s 246(2)).
5. An employer and employee are removed from the authorisation when an agreement or determination that starts after the authorisation was made comes to cover them (s 245). A union covered by a supported bargaining agreement may apply to add an employer whose employees, by majority, want to be covered (ss 216B, 216BA).

Two or more employers, or a bargaining representative (usually a union), may apply (s 248). The Commission must make the authorisation if satisfied that (s 249(1)):

1. at least some of the employees are represented by a union;
2. the employers and the employees' bargaining representatives have had the chance to express their views;
3. on an employers' application, they agreed to bargain together without coercion (s 249(1A));
4. on a bargaining representative's application, each employer consented or meets s 249(1B), which requires that it:
   1. employed at least 20 employees when the application was made;
   2. has no undecided application of its own, and is not named in another authorisation for these employees;
   3. has a majority of the relevant employees who want to bargain;
   4. is not blocked by s 249(1D): an in-term agreement covering those employees, or a written agreement with a union "to bargain for a proposed single-enterprise agreement" covering them;
5. the employers are franchisees of the same franchisor, or have clearly identifiable common interests and the authorisation is not contrary to the public interest (s 249(2), (3));
6. for common interest employers, their operations and business activities are reasonably comparable (s 249(1)(b)(vi)).

On a bargaining representative's application, for an employer with 50 or more employees at the application date, reasonable comparability, common interests and the public interest are presumed "unless the contrary is proved" (s 249(1AA), (3AB)). The Full Bench held the presumption "must be applied according to its own terms. That is, there is an onus on the Respondent Employers" (APESMA v Great Southern Energy Pty Ltd [2024] FWCFB 253 at [214]). The Full Court dismissed three employers' applications for judicial review (Ulan, orders).

On the public interest, bargaining by two or more employers is not regarded by the Act as "necessarily or presumptively contrary to the public interest" where s 249's requirements are met (ASU v Central Goldfields Shire Council [2024] FWCFB 444 at [77]).

A written agreement to bargain for a single-enterprise agreement "must be specific", and "An employee organisation merely agreeing in writing to participate in bargaining in a general sense, or attend a bargaining meeting, is unlikely to be sufficient" (Central Goldfields at [61]).

1. It operates from the day it is made, and ends when the agreement is made or 12 months after, unless extended (s 249(4)). A bargaining representative may apply to extend it; the Commission may do so if there are reasonable prospects of agreement with more time and it is appropriate (s 252).
2. While it operates, the employers may make only a single interest employer agreement with those employees (s 172(5)). It is a notification time for each specified employer (s 173(2)(e)), and opens bargaining orders and intractable bargaining (ss 229(2), 234(2)).
3. An employer may be removed because of a change in its circumstances, and an employer with fewer than 50 employees may be removed after a vote of its employees (s 251(2A), (2B)). Employers may be added on similar conditions to the original application (s 251(3)-(8)).

The Commission may make an intractable bargaining declaration on a bargaining representative's application (not for a greenfields agreement, and for a multi-enterprise agreement only under an authorisation) if (ss 234, 235):

1. it has dealt with the dispute about the agreement under s 240, and the applicant took part in its processes (s 235(2)(a));
2. there is no reasonable prospect of agreement without the declaration (s 235(2)(b));
3. it is reasonable in all the circumstances, taking into account all the bargaining representatives' views (s 235(2)(c));
4. the minimum bargaining period has ended (s 235(1)(c), (5), (6)).

1. "No reasonable prospect" is not the same as no prospect; it calls for "an evaluative judgment that it is rationally improbable that an agreement will be reached" (UFU v Fire Rescue Victoria [2023] FWCFB 180 at [29]).
2. "Dealt with" means the Commission "must have had a real opportunity to take action" on the dispute; the s 240 proceedings need not be finished (TWU v Cleanaway Operations Pty Ltd [2024] FWCFB 127 at [12]-[14]).
3. Whether the s 240 dispute must be the same dispute that is said to have made bargaining intractable was left open in UFU v Fire Rescue Victoria at [28], and again in Cleanaway at [94]. The Act says only "the dispute about the agreement" (s 235(2)(a)). No decision settles it.

1. The declaration operates until each employer specified is covered by an agreement or workplace determination (s 235(4)). While it is in operation, industrial action for the agreement cannot be protected action (s 413(7)(c)).
2. The Commission may set a post-declaration negotiating period, and extend it (s 235A).
3. A Full Bench must then make an intractable bargaining workplace determination "as quickly as possible" (s 269; s 616(4)).
4. The determination contains the agreed terms, terms dealing with the matters still at issue, and the core and mandatory terms, and nothing else (ss 270, 271, 272, 273, 274(3)).
5. On the matters at issue, the Commission must take into account (s 275):
   1. the merits of the case;
   2. the interests of the employers and employees;
   3. the significance to them of arrangements or benefits in an existing enterprise agreement;
   4. the public interest;
   5. how productivity might be improved;
   6. the reasonableness of the bargaining representatives' conduct;
   7. their compliance with the good faith bargaining requirements;
   8. incentives to continue to bargain at a later time.

1. Where an agreement applies to the employees immediately before the determination, a term on a matter still at issue must be not less favourable to each employee, and to any union that was a bargaining representative, than the existing agreement's term on that matter (s 270A(1), (2)).
2. The floor does not apply to a term providing for a wage increase (s 270A(4)).
3. Since 7 July 2026, the floor also applies to the mandatory dispute, flexibility, consultation and delegates' rights terms, other than agreed terms (s 270A(2A), (5)). The amended sections apply to determinations made on or after that day, and a party covered by an earlier determination has a 12-month window to ask a Full Bench to vary it (FW Act Sch 1 cll 138A, 138B).

On wages, a Full Bench quoted and adopted earlier Full Bench statements that the aim is an outcome "fair in all the circumstances" with no formula, and said: "Plainly, the maintenance of real wages is a relevant consideration" (Application by ASMOF [2025] FWCFB 229 at [31], [176]). A determination may require a wage increase to be paid from an earlier date (Application by Parks Victoria [2013] FWCFB 950 at [152]).

The genuine agreement rules were rewritten by Part 14 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which commenced on 6 June 2023 (AMWU v Sublime Infrastructure Pty Ltd [2024] FWCFB 432 at [15]). The old rules still apply to a proposed agreement whose notification time came before that commencement (FW Act Sch 1 cl 66). An agreement bargained for over several years may therefore still be under the old rules.

1. Explanation. The employer must take all reasonable steps to ensure the terms, and their effect, are explained to the employees who will be covered, in an appropriate manner given their circumstances and needs (s 180(5), (6)).
2. Unions' written agreement, where required. For a multi-enterprise agreement, the employer must not request a vote unless each union that is a bargaining representative has given written agreement, or a voting request order permits it (s 180A). The same applies to a single-enterprise agreement that would displace an in-term supported bargaining or single interest employer agreement, for each union to which the old agreement applies (s 180B).
3. The 21-day wait. Where an NERR was required, no vote may be requested until at least 21 days after the last notice (s 181(2)).
4. The vote. A single-enterprise agreement is made when a majority of the employees who cast a valid vote approve it (s 182(1)). A multi-enterprise agreement is made if the employees of at least one employer approve it, and employers whose employees voted no are removed by variation (ss 182(2), 184).
5. The application. "If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval", within 14 days or a further period the Commission allows (s 185(1), (3)). Whoever applies, the employer's declaration (Form F17) accompanies the application, and a union bargaining representative may lodge its own declaration (Form F18) saying whether it supports or opposes approval, and why.
6. Coverage notice. A union that was a bargaining representative may give the Commission written notice, with a copy to each employer, that it wants the agreement to cover it, before approval (s 183).
7. The decision. The Commission approves the agreement only if the requirements in ss 186 and 187 are met.

The text of s 185 says the following:

1. the duty is on "a bargaining representative for the agreement", which includes a union bargaining representative, so a union can make the application itself;
2. s 185 is not a civil remedy provision: it is not in the Part 2-4 rows of the s 539(2) table;
3. the employer is always a bargaining representative (s 176(1)(a)), so an application by it is an application under s 185(1);
4. an agreement that has been made but never approved does not operate (s 54(1)).

Whether any other consequence follows for a union bargaining representative that does not apply is not stated in the Act, and no decision settles it.

The Commission may approve a non-greenfields agreement only if satisfied it was genuinely agreed to by the employees covered (s 186(2)(a)). Under s 188:

1. the Commission must take into account the Statement of Principles (s 188(1));
2. the employees asked to vote must have a sufficient interest in the terms and be sufficiently representative of the employees the agreement covers (s 188(2));
3. the employer must have complied with ss 180A or 180B where they apply, with ss 173, 174 and 181(2) where an NERR was required, and with s 180(5) (s 188(2A), (3), (4), (4A));
4. the Commission may disregard minor procedural or technical errors on those steps if employees were not likely to have been disadvantaged (s 188(5)).

The Statement of Principles is not a set of mandatory rules, but it must be taken into account (Sublime at [19]). Among its principles:

1. employees should have a copy of the agreement and any material incorporated by reference a reasonable time before voting, which includes at least 7 full calendar days (principles 4 to 7);
2. for a replacement agreement, the explanation should at least explain how the agreement alters existing entitlements under the old agreement and any award changes since it was made; for a first agreement, against the award (principle 8);
3. an incorrect or misleading representation about a significant term will generally mean s 180(5) is not met (principle 10);
4. the vote should be secret from the employer, with at least 7 full calendar days' notice of the time, place and method (principles 15 and 16);
5. an agreement will generally not be genuinely agreed unless it was "the product of an authentic exercise in agreement-making" (principle 18);
6. the view of one or more unions acting as bargaining representatives for a significant proportion of the employees, that support approval and have no concerns about genuine agreement, "should be given significant weight" (principle 19).

1. "a bare statement by an employer that an explanation has been given is an inadequate foundation" for the Commission's satisfaction; whether reasonable steps were taken "is a question of substance, not form" (One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [112]).
2. A vote deliberately confined to two employees, where it was known the agreement would apply to a wider group, was not the product of "an authentic exercise in agreement-making", and the two voters were not sufficiently representative (Sublime at [30], [33]). A union not involved in the bargaining appealed with further evidence and the approval was quashed.
3. An explanation of an important change that came "at the proverbial eleventh hour", on the eve of the vote, for a largely part-time and casual workforce, did not meet the duty to explain (HSU v Clinpath Laboratories Pty Ltd [2018] FWCFB 5694 at [23], [24], [27]). It was decided under the earlier provisions; the duty in s 180(5) is the same.
4. The Statement of Principles says nothing about the weight of a union's opposition; principle 19 speaks only to support.

Besides genuine agreement, the requirements in s 186 and s 187 include:

1. no term contravenes s 55 (the National Employment Standards) (s 186(2)(c));
2. the agreement passes the BOOT (s 186(2)(d));
3. for a cooperative workplace agreement, at least some employees were represented by a union in bargaining (s 186(2A));
4. the group of employees covered was fairly chosen (s 186(3), (3A));
5. no unlawful terms or designated outworker terms (s 186(4), (4A));
6. a nominal expiry date no more than 4 years after approval (s 186(5));
7. a term allowing the Commission or another independent person to settle disputes, with employees able to be represented (s 186(6));
8. approval would not undermine good faith bargaining for an agreement subject to a scope order (s 187(2)).

1. The test is applied at the time the approval application is made, to each award covered employee and each reasonably foreseeable employee (s 193(1), (6)). It is a global assessment of the more and less beneficial terms (s 193A(2)).
2. The Commission must consider the views of the employer, the employees and any bargaining representative, and give primary consideration to a common view shared by every employer bargaining representative and every union that is a bargaining representative of award covered employees (s 193A(3), (4)). A single-member decision held that the views of non-union employee representatives do not count towards the common view, so where the only union disagreed, there was no common view (Dome Developments Pty Ltd [2025] FWC 745 at [45], [46]).
3. The Commission may only have regard to patterns of work and types of employment that are reasonably foreseeable at the test time (s 193A(6)). The same decision held that this does not extend to "making assumptions about what business decisions the employer might take in circumstances where the Agreement was not approved" (Dome at [53]).
4. If covered employees later work patterns the Commission did not consider, an employer, an employee or a union covered by the agreement may apply for reconsideration (s 227A).
5. An agreement that fails only the BOOT may be approved in exceptional circumstances if approval would not be contrary to the public interest, with a nominal expiry of no more than 2 years (s 189).
6. The current BOOT provisions apply to agreements made on and after the commencement of Part 16 of Schedule 1 to the 2022 amending Act (FW Act Sch 1 cl 67).

Whether a group was "fairly" chosen is a matter of impression, and selection that is arbitrary or discriminatory would be unlikely to be fair (Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206 at [21]). Cimeco also said selection that undermines collective bargaining would be unlikely to be fair. That limb is narrow: a Full Court judge said collective bargaining has "quite a limited role" in the question, and another agreed that reliance on undermining collective bargaining was a jurisdictional error in that matter (CFMEU v John Holland Pty Ltd [2015] FCAFC 16 at [3], [84]).

1. The Commission may accept a written undertaking from an employer to meet a concern, but only if it is not likely to cause financial detriment to any employee or result in substantial changes to the agreement (s 190(3)).
2. The Commission must first seek the views of each person it knows is a bargaining representative (s 190(4)). Accepting undertakings without seeking a union's views "constituted a further error" (Clinpath at [29]).
3. For a BOOT concern only, the Commission may itself specify an amendment, after seeking the views of the employer, the employees and a bargaining representative (s 191A).

1. After an agreement (other than greenfields) is made, a union that was a bargaining representative may give the Commission written notice that it wants to be covered, with a copy to each employer, before approval (s 183). The Commission then notes in its decision that the agreement covers the union (s 201(2)).
2. A union need only have been a bargaining representative at some stage (Collinsville at [30]-[32]).
3. A bargaining representative has standing to be heard on approval (Collinsville at [16]). A s 183 notice alone, by a union no longer a bargaining representative, does not give standing to oppose (at [38]).

An appeal from an approval decision needs permission (s 604), which the Full Bench must grant if satisfied it is in the public interest (CFMEU v JWLand Construction Pty Ltd [2025] FWCFB 147 at [22]). The notice of appeal is due within 21 days after the decision, or further time the Commission allows (Fair Work Commission Rules 2024 r 128(2)).

An agreement ceases to operate only when a termination comes into operation or no employee remains to whom it applies (s 54(2)). A later agreement covering the same employees displaces it when the later agreement comes into operation (s 58(2)(e)).

1. The employer and employees may vary an agreement by vote, and the variation has no effect until the Commission approves it (ss 207, 209, 211). The application is due within 14 days (s 210(3)).
2. For a multi-enterprise agreement, the employer must not ask employees to vote on a variation without each covered union's written agreement, or a voting request order (s 207A).
3. A term that blocks this route is invalid. A "no further claims" clause that would stop an employer proposing a variation and putting it to a vote was inconsistent with the Act and invalid to that extent (Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84 at [108], [110]).
4. An employer leaving a multi-enterprise agreement by vote under s 216E needs, among other things, the agreement of each covered union entitled to represent an affected employee (s 216EB(d)).

1. Ambiguity or uncertainty. On a covered employer's, employee's or union's application, the Commission may vary an agreement to remove an ambiguity or uncertainty, from a day it specifies (s 217). A provision may be ambiguous even though it is capable of interpretation, and uncertainty may exist even where the words are unambiguous (Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 at [66]-[67], [73], [75]).
2. Obvious error. The Commission may correct an obvious error, defect or irregularity (s 218A), a power separate from s 217 (AFULE v Aurizon Operations Ltd [2023] FWCFB 193 at [76]).

The employer and employees may agree to terminate an agreement by majority vote, and a person covered must apply within 14 days (ss 219, 221, 222). The Commission must approve only if, among other things, "it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement" (s 223(d)).

After nominal expiry, a covered employer, employee or union may apply to terminate the agreement (s 225). The current s 226 applies to any application the Commission had not decided when it commenced (FW Act Sch 1 cl 65). Under it:

1. the Commission must terminate if satisfied of one of these grounds (s 226(1)):
   1. continued operation would be unfair for the employees covered;
   2. the agreement does not, and is not likely to, cover any employees;
   3. continued operation would pose a significant threat to the viability of the employer's business, termination would be likely to reduce the potential for redundancy or insolvency dismissals, and each employer has given a guarantee of termination entitlements where the agreement has them (s 226(1)(c), s 226A);
2. but only if satisfied it is appropriate in all the circumstances (s 226(1A));
3. it must consider the views of the employees, each employer and each covered union (s 226(3));
4. it must have regard to (s 226(4)):
   1. whether the application was made at or after the notification time for a replacement agreement covering substantially the same group;
   2. whether bargaining for it is occurring;
   3. "whether the termination of the existing agreement would adversely affect the bargaining position of the employees".

If a covered employer, employee or union opposes termination, the President may be required to direct a Full Bench (note to s 226(3); s 615A(3)). The earlier public interest test, applied in Aurizon Operations Ltd [2015] FWCFB 540, has been replaced. Two applications under the current test, one granted and one refused, are case studies on the companion page.

The 2022 amendments put a sunset on three kinds of old instrument, described by the Full Bench as "zombie agreements" (Suncoast Scaffold at [6]):

1. agreements made under the Workplace Relations Act 1996 (Cth) and kept alive in 2009, collective and individual, including AWAs (Transitional Act Sch 3 item 20A);
2. Division 2B State employment agreements (Sch 3A item 26A, in relevantly identical terms: Application by ISS Health Services Pty Ltd [2023] FWCFB 122 at [2]);
3. FW Act agreements made in the 2009 bridging period (Sch 7 item 30).

1. Each instrument terminated at the end of its grace period: a default period of 12 months from the commencement of Part 13 of Schedule 1 to the 2022 amending Act, or that period as extended (item 20A(1), (2)). Full Benches treat the default period as ending at the end of 6 December 2023 (Suncoast at [7]; ISS Health at [2]).
2. Once terminated, an instrument "ceases to cover (and can never again cover) any employees, employers or other persons" (Sch 3 item 21). The modern award, the National Employment Standards and any later enterprise agreement then apply.

1. Who could apply. An employer covered, an employee covered, or a union entitled to represent a covered employee, before the end of the grace period (item 20A(4)). The Commission cannot extend the time for applying (A.C.N. Orchards Pty Ltd [2024] FWCFB 285 at [4]).
2. The test. The Commission must extend for no more than 4 years if satisfied that one of subitems (7), (8) or (9) applies and an extension is otherwise appropriate, or that it is reasonable in the circumstances (item 20A(6)):
   1. subitem (7): the application was made at or after the notification time for a replacement agreement covering the same, or substantially the same, group, and bargaining is occurring;
   2. subitems (8) and (9): the employees, for a collective instrument "viewed as a group", would likely be better off overall than under the award (Suncoast at [13], [15]).
3. The length. The Commission decides the length. In one case it gave about 18 months rather than the two years sought, saying a longer extension "may encourage dilatoriness in bargaining" (ISS Health at [6]-[7]).

1. Full Benches treat 6 December 2027 as the latest date to which an instrument can be extended:
   1. "no more than four years (that is, no more than until 6 December 2027)" (Suncoast at [8]);
   2. on a second application seeking 6 December 2028, "the maximum permissible life of a transitional instrument under subitem 20A is 6 December 2027", and the extension was to that date (AMWU [2025] FWCFB 269 at [7], [12]);
   3. on third applications, extensions "for the maximum period permissible under the Transitional Act, to 6 December 2027" (Australian Education Union and Health Services Union [2025] FWCFB 242 at [10]).
2. The Explanatory Memorandum to the 2022 Bill says an extension may be "for a period of no more than 4 years at a time" and that "there is no limit to the number of extensions" if the requirements are met each time (at [669]-[670]). The Full Bench decisions above do not discuss that passage. No decision settles whether successive extensions can run past 6 December 2027.
3. If an application is pending when a grace period ends and is later refused, the Commission must extend the default period to the day of refusal or up to 14 days later (item 20A(11)). Whether that can carry an instrument past 6 December 2027 has not been decided.

1. An employer covered by such an instrument had to give each covered employee employed at the end of 6 months from commencement a written notice that the instrument would terminate unless an extension application was made (item 20A(3)). Breach is a civil remedy provision (Transitional Act Sch 16 item 4C).
2. A union entitled to represent the industrial interests of a covered employee may apply to a court (Sch 16 item 16(1), table item 44H), subject to s 540(6) of the FW Act, under which eligibility under its rules is enough to be "entitled to represent" an affected employee (Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55 at [49]-[51]).
3. The application must be made within 6 years after the day the contravention occurred (FW Act s 544). The 6 months for giving notice ended at the end of 6 June 2023. Whether the failure "occurred" on 6 June or 7 June 2023 is not settled by the text, and no decision settles it.

There is a transfer of business if (s 311(1)):

1. an employee's employment with the old employer has ended;
2. within 3 months, the employee is employed by the new employer;
3. the work is the same, or substantially the same;
4. there is a connection between the employers of one of these kinds:
   1. under an arrangement, the new employer owns or has the beneficial use of assets of the old employer used in the work (s 311(3));
   2. the old employer has outsourced the work to the new employer (s 311(4));
   3. the new employer has brought back in work that had been outsourced to the old employer (s 311(5));
   4. the new employer is an associated entity of the old employer (s 311(6)).

1. An enterprise agreement, workplace determination or named employer award that covered the old employer and the transferring employee covers the new employer and that employee in relation to the transferring work (s 313). It can also cover new hires doing that work if no other agreement or modern award covers them (s 314).
2. If the agreement covered a union immediately before the transfer, "the enterprise agreement covers the employee organisation" (s 315(3)).
3. A transferred agreement's dispute term was held, by majority, to bind a new employer that had voluntarily assumed the obligation, once the union started the dispute procedure (One Tree Community Services Inc v United Workers' Union [2021] FCAFC 15 at [62], [79]). One judge dissented (at [51]).

1. The new employer, an affected employee or a union covered by the agreement may apply for an order that the transferred instrument does not cover, or that the new employer's own instrument does cover, transferring employees (s 318), with parallel orders for new hires (s 319) and variations (s 320).
2. The Commission must take into account (s 318(3)):
   1. the views of the new employer and of the affected employees;
   2. whether any employee would be disadvantaged in their terms and conditions;
   3. for an enterprise agreement, its nominal expiry date;
   4. any negative impact on the new employer's productivity;
   5. whether the new employer would incur significant economic disadvantage;
   6. the degree of business synergy between the instruments;
   7. the public interest.
3. A 2010 single-member decision described employee disadvantage as "a significant hurdle" to an order (Stratco (NSW) Pty Ltd [2010] FWA 7036 at [25]). It carries limited weight.

Part 6-3A applies a similar scheme when the old employer is a State public sector employer outside the national system and the new employer is a national system employer, as in a privatisation of WA government work (s 768AA). A copy of the State award and any State employment agreement becomes a federal "copied State instrument" covering the employee and the new employer (ss 768AH, 768AK). It covers the State union that was covered (s 768AN(2)), and a copied State award ends after a default period of 5 years unless extended (s 768AO(2)).

1. A greenfields agreement is made with one or more relevant unions for a genuine new enterprise (a new business, activity, project or undertaking) before the employer has employed anyone necessary for its normal conduct who will be covered (s 172(2)(b), (4)).
2. A union is a bargaining representative only if it is entitled to represent at least one of the future employees in the work and the employer agrees to bargain with it (s 177). No NERR is given.
3. The Act does not prefer greenfields agreements to agreements made with employees: "The FW Act recognises each form of bargaining. It does not prefer one over the other" (John Holland at [79]).

1. By signature of each employer and each union it is expressed to cover (s 182(3)).
2. For a single-enterprise greenfields agreement, the employer may give each union bargaining representative written notice of a 6-month notified negotiation period (s 178B). After it ends, good faith bargaining, bargaining orders and the s 240 procedure no longer apply (s 255A).
3. After the period ends, if the employer gave each union a reasonable opportunity to sign, it may apply for approval of an agreement no union signed (s 182(4)).
4. The notice must actually reach the union. A single-member decision held that notice given only to officials of one State branch, who had no authority under the rules to negotiate a national agreement, was not notice to the union, so the agreement had not been made under s 182(4) (Lofte Australia Pty Ltd [2023] FWC 2178 at [37], [38], [42]).

1. The unions covered must be entitled to represent a majority of the future employees, and approval must be in the public interest (s 187(5)).
2. For an agreement made under s 182(4), it must, "considered on an overall basis", provide pay and conditions consistent with the prevailing pay and conditions in the industry for equivalent work (s 187(6)). In Lofte, in an alternative finding by a single member, an agreement "substantially inferior to" the prevailing pay and conditions in the stevedoring industry would not have been approved (at [43], [74]).
3. No protected action may be taken for a proposed greenfields agreement (s 413(2)).