Revised approval and variation provisions for enterprise agreements take effect on 6 June 2023, including a new section 188B in the Fair Work Act 2009 (Cth), which requires the Fair Work Commission to make a statement of principles for employers to ensure employees have “genuinely agreed” to the enterprise agreement.
The Commission published last Friday its final “Genuine Agreement” principles, which have been lodged for registration with Parliament as a legislative instrument.
The purpose of introducing the principles is to move away from the more prescriptive pre-approval requirements which currently apply, and to provide guidance to parties on how the FWC will consider "particular issues" when deciding whether a proposed agreement was “genuinely agreed”.
While the new amendments will benefit employers, by removing some of the strictures previously applicable to the enterprise agreement process and providing the Commission with some limited discretions in approving an agreement, the principles contain very similar considerations to the current process.
Accordingly, we don’t see any significant change in the level of work required by employers in undertaking the enterprise agreement process, but the changes will hopefully “save” some agreements in circumstances of minor or immaterial non-compliance, where previously they would have been rejected.
For advice on enterprise agreement making or how the latest changes affect your business please contact a member of our Workplace Relations and Safety Team.