The August 2026 edition of the HR Breakfast Club, led by Special Counsel Ash Borg and assisted by Lawyer Ed Kang, examined enterprise agreements and the bargaining process. The session outlined that while an enterprise agreement can be an important tool for consolidating and tailoring employment conditions, the process for getting one approved by the Fair Work Commission (FWC) can be demanding, and recent reforms continue to reshape the enterprise bargaining landscape.
Enterprise agreements sit within a hierarchy of workplace regulation, alongside the Fair Work Act 2009 (Cth) (FW Act), the National Employment Standards (NES) and Modern Awards. An employment contract binds only the employer and employee who agree to it. An enterprise agreement is different: once approved by the FWC, it binds every employee it covers, including those who voted against it or did not vote at all. Depending on how it is drafted, it can build on Modern Award conditions or replace them entirely, which is often the main attraction for employers juggling complex award coverage. A single school, for example, may have employees covered by five or more different awards.
Single-enterprise agreements, made by a single employer (or two or more related employers), remain the most common.
Greenfields agreements are also available for genuinely new businesses or projects, before the employees needed to run them have been hired, and an registered organisation (usually a Union) must be involved in the bargaining.
Multi-enterprise agreements, which cover more than one employer, are not new; they have long been part of the bargaining framework. What has changed is their structure: the recent reforms reorganised multi-enterprise bargaining into three streams:
Single interest employer agreements: for employers who share a common interest and have obtained an authorisation from the FWC, such as private schools of the same religious denomination.
Supported bargaining agreements: replaced the former “low paid bargaining” stream and are prominent in sectors such as aged care and early childhood education.
Cooperative workplace agreements: a newer stream for employers who choose to bargain together voluntarily. Protected industrial action is not available under this stream.
The practical effect of these reforms is that employers may now be required to participate in multi-enterprise bargaining in a broader range of circumstances than before.
To be approved, an enterprise agreement must deal only with permitted employment matters, cannot exclude the NES, and must include compulsory terms covering individual flexibility, consultation, dispute resolution and workplace delegates’ rights. It must also pass the Better Off Overall Test (BOOT). The FWC now applies the BOOT as an overall weighing-up of the more and less beneficial terms, rather than comparing the agreement line by line against the applicable Modern Award.
The process is also unforgiving on timing. Employees must be notified of their right to be represented within 14 days of bargaining starting, they must have access to the proposed agreement for at least 7 clear days before voting begins, and voting cannot start until at least 21 clear days after the last of those notices was given. Once a majority of employees who cast a valid vote approve the agreement, the employer has just 14 days to lodge it with the FWC for approval, and that deadline should be treated as strict.
The FWC cannot approve an agreement unless satisfied that employees genuinely agreed to it and that the correct steps were followed. Minor slip-ups may be forgiven where employees were not disadvantaged, but serious failures can sink the application altogether, and in some cases the parties must start the whole process again.
If bargaining drags on with no realistic prospect of the parties reaching agreement, a bargaining representative can ask the FWC to declare the bargaining “intractable”. If the deadlock still cannot be broken, the FWC can step in and set the outstanding terms itself through a workplace determination.
Reforms introduced in 2026 strengthen the protections for employees in that scenario. Where the workforce was covered by an enterprise agreement before the determination was made, the mandatory terms of the determination (covering dispute resolution, flexibility, consultation and workplace delegates’ rights) cannot leave employees, or a union that was a bargaining representative, worse off than the corresponding terms of the old agreement. In short, a determination cannot take employees backward on those terms, with the one exception being a term providing for a wage increase. Parties to an existing determination have 12 months from the commencement of the reforms to apply to bring it into line.
An enterprise agreement does not simply stop operating when its nominal expiry date passes. It continues to apply until it is replaced or the FWC terminates it, which the FWC can only do in limited circumstances. Employers should review any long-running or expired agreements, rather than assuming they remain safe from challenge.
An Important Tool: An enterprise agreement can consolidate complex award coverage and tailor conditions to the business, but the approval process leaves little room for error.
Strict Timeframes: The 14-day, 7-day and 21-day periods, and the 14-day deadline for lodging the approval application, must be built into the bargaining plan from the outset.
Genuine Agreement: The FWC must be satisfied that employees genuinely agreed; serious procedural failures can force the parties to start again.
Wider Bargaining Exposure: The new multi-enterprise streams mean employers may be required to participate in bargaining in a broader range of circumstances than before.
The 2026 Reforms: In a drawn-out bargain, a determination imposed by the FWC can no longer leave employees worse off on the mandatory terms than they were under their old agreement.
Expired Agreements: An agreement does not stop operating at its nominal expiry date; long-running or expired agreements should be reviewed now.
If you are an HR professional and would like to attend our future HR Breakfast Club forums, please visit our monthly forum page and register to attend, or sign up to our mailing list by emailing events@ballawyers.com.au.
If you have any questions or queries about the information in this summary, or if you are experiencing any issues and need advice, please contact the BAL Lawyers Employment & Investigations team on 02 6274 0999.