Material to accompany application

See Fair Work Commission Rules 2013 r.24

This section provides detailed guidance on the requirements for materials accompanying the application to approve an enterprise agreement.

Employer requirements

An application for the approval of a single or multi-enterprise agreement made to the Fair Work Commission must include the following documentation:

• a signed and dated copy of the agreement
• a completed and signed application form [Form F16], and
• a completed and sworn statutory declaration by each employer in support of the agreement [Form F17]. This must include a copy of the Notice of representational rights provided to employees.

Related information

• Signing agreement
• Terms of the agreement must be explained

Bargaining representatives

Each union that is a bargaining representative, or each bargaining representative who has been appointed by one or more employees, who want to advise the Commission about whether they:

• support or oppose approval of the agreement
• agree with one or more statements in a declaration made by an employer, or
• have any concerns, issues or disagreements with the content of a declaration made by an employer;

must lodge a completed and signed declaration at any time before the Commission approves the agreement.

• A union bargaining representative completes [Form F18].
• A bargaining representative appointed by one or more employees completes [Form F18A].

Greenfields agreement made by signing

An application for the approval of a greenfields agreement made to the Commission must include the following documentation:

• a signed and dated copy of the agreement
• a completed and signed application form [Form F19]
• a completed and signed declaration by each employer in support of the agreement. [Form F20], and
• a completed and signed declaration by each union [Form F21].

Greenfields agreement that has been made by lodgment after end of notified negotiation period

An application under subsection 182(4) for approval of an agreement made by lodgment after the end of notified negotiation period must be accompanied by:

• a copy of the agreement, and
• any declarations that are required by the procedural rules to accompany the application.[3]

Related information

• Greenfields agreement

An application for the approval of a single or multi-enterprise agreement must be made with a Form F16, and applications for approval of a greenfields agreement must be made with a Form F19. The application forms contain basic information, such as:

• contact details for the applicant, bargaining representatives and/or unions
• basic details of the agreement, such as its name and the industry of work it covers, and
• whether there are, or have been, any similar agreements lodged with the Commission for approval.

Links to forms

• Form F16 – Application for approval of enterprise agreement (other than a greenfields agreement)
• Form F19 – Application for approval of greenfields agreement made under subsection 182(3) of the Act

All forms are available on the Forms page of the Commission's website.

Application made by a bargaining representative

If an application is made by a bargaining representative appointed by an employer or by an employee rather than the employer covered by the agreement, the application must be accompanied by a copy of the written instrument of appointment of the bargaining representative.[4]

Any application form for the approval of an agreement must be accompanied by a declaration from each employer. For a single or multi-enterprise agreement this is made with Form F17, for a greenfields agreement it is made with the Form F20.

This declaration requires detailed information from the employer about the process that was followed in the making of the agreement, and how this process meets each pre-approval requirement in the legislation. The questions in the form must be answered truthfully and in sufficient detail to allow the Commission to determine whether the requirements of the Fair Work Act 2009 have been satisfied.

It is an offence to knowingly give information that is false or misleading or which omits any matter or thing without which the information is misleading, or to knowingly produce a false or misleading document in support of an application for approval of an enterprise agreement, the punishment for which is imprisonment for up to 12 months – see s.137.1 and s.137.2 of the Criminal Code.

The form also requires the employer to specify which modern award (or other reference instrument) would have applied to employees if not for the agreement and provide information about how the employees are better off overall under the agreement rather than that award.

As soon as possible after lodging the form with the Commission, a copy must also be served on:

• each employer that will be covered by the agreement, and
• each union that was a bargaining representative, and
• any other employee appointed bargaining representative that the employer is are aware of.

Links to forms

• Form F17 – Employer's declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement
• Form F20 – Employer's declaration in support of application for approval of a greenfields agreement made under subsection 182(3) of the Act

All forms are available on the Forms page of the Commission's website.

Employer's statutory declaration NOT accepted

Unreliable statutory declaration

Re Chirotherapy Pty Ltd [2011] FWA 4925 (McKenna C, 29 July 2011).

It appeared that the employer had used a template statutory declaration that had been used for numerous agreements in the past. Variants of the template had been the subject of concerns of the Commission, leading the Commission to require the employer to provide written undertakings.

The particular template in this case appeared incomplete and did not contain information that could be considered to be reliable, accurate, complete or otherwise acceptable. The application was listed for hearing but the applicant did not attend. The application was dismissed and the agreement was not approved.

A union can also lodge a declaration using Form F18. This form allows the organisation to advise the Commission whether it:

• supports the approval of the agreement
• has any concerns, issues or disagreements with the content of the employer’s declaration, and
• whether it wishes to be covered by the agreement.

Similarly, a bargaining representative (such as another employee) who was appointed by one or more employees to represent their interests during bargaining can lodge a declaration using Form F18A. This form allows the bargaining representative to advise the Commission whether it:

• supports the approval of the agreement, or
• has any concerns, issues or disagreements with the content of the employer’s declaration.

A copy of these forms must also be provided to the employer(s) covered by the agreement and all other bargaining representatives as soon as practicable after lodgement with the Commission.[5]

The declaration must be completed truthfully.

It is an offence to knowingly give information that is false or misleading or which omits any matter or thing without which the information is misleading, or to knowingly produce a false or misleading document, in support of an application for approval of an enterprise agreement, the punishment for which is imprisonment for up to 12 months – see s.137.1 and s.137.2 of the Criminal Code.

Links to forms

• Form F18 – Declaration of employee organisation in relation to an application for approval of enterprise agreement (other than a greenfields agreement)
• Form F18A – Declaration of employee representative in relation to application for approval of an enterprise agreement (other than a greenfields agreement)

All forms are available on the Forms page of the Commission's website.

See Fair Work Act s.183

If a union wants a single or multi-enterprise enterprise agreement to cover it, the union must notify the Commission in writing. This notification is done by completing Question 6 on Form F18.

The notification must be given before the Commission has made its decision to approve the agreement. A copy of the notice must also be given to each employer covered by the agreement before the Commission approves the agreement.[6] The Commission will note in its approval decision that the agreement covers the union.[7]

When an agreement covers (and applies to) a union, the union will have certain entitlements that it would not otherwise have. For instance, the union will be able to enforce the terms of the agreement.[8]

Union NOT covered by agreement

Union failed to provide its notification that it wishes to be covered by agreement to the employer

RotoMetrics Australia Pty Ltd v Australian Manufacturing Workers' Union [2011] FWFB 7214 (Watson SDP, Richards SDP, Smith C, 27 October 2011), [(2011) 212 IR 373].

The AMWU notified the Commission that it wished to be covered by the agreement but failed to provide the notification to the employer. When it approved the enterprise agreement, the Commission noted in the decision that the AMWU was covered by the enterprise agreement.

The employer appealed this aspect of the approval on the basis that the AMWU had not provided the notification to the employer.

The Full Bench concluded that the requirement to provide the notification to the employer was a pre-condition to coverage, rather than simply a procedural requirement. Accordingly, given that the AMWU had not provided the employer with the notification, it could not be covered by the enterprise agreement.

For a greenfields agreement, a union covered by the agreement must lodge a declaration using Form F21. This form allows the union to advise the Commission whether it:

• supports the approval of the agreement, or
• has any concerns, issues or disagreements with the content of the employer’s declaration.

Unlike the case of an application to approve a single or multi-enterprise agreement, a union will be covered by a greenfields agreement if it made the agreement.

Link to form

• Form F21 – Declaration of an employee organisation in relation to an application for approval of a greenfields agreement made under subsection 182(3) of the Act

All forms are available on the Forms page of the Commission's website.

If a statutory declaration is lodged by a bargaining representative appointed by an employer or by an employee, the declaration must be accompanied by a copy of the written instrument of appointment of the bargaining representative.[9]