Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 186

Basic rule

  (1)   If an application for the approval of an enterprise agreement is made under subsection   182(4) or section   185, the FWC must approve the agreement under this section if the requirements set out in this section and section   187 are met.

Note:   The FWC may approve an enterprise agreement under this section with undertakings (see section   190).

Requirements relating to the safety net etc.

  (2)   The FWC must be satisfied that:

  (a)   if the agreement is not a greenfields agreement--the agreement has been genuinely agreed to by the employees covered by the agreement; and

  (b)   if the agreement is a multi - enterprise agreement:

  (i)   the agreement has been genuinely agreed to by each employer covered by the agreement; and

  (ii)   no person coerced, or threatened to coerce, any of the employers to make the agreement; and

  (c)   the terms of the agreement do not contravene section   55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

  (d)   the agreement passes the better off overall test.

Note 1:   For provisions dealing with determining whether an enterprise agreement has been genuinely agreed to by employees, see section   188.

Note 2:   The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section   189).

Note 3:   The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph   55(4)(b)).

  (2AA)   In applying paragraph   186(2)(b), the FWC must disregard anything done, and the effect of anything done, by a person other than one of the employers who bargained for the agreement, that is authorised by or under this Act (including protected industrial action).

Requirement relating to representation for cooperative workplace agreement (not greenfields)

  (2A)   If the agreement is a cooperative workplace agreement that is not a greenfields agreement, the FWC must be satisfied that at least some of the employees covered by the agreement were represented by an employee organisation in relation to bargaining for the agreement.

Requirement that multi - enterprise agreements (other than greenfields agreements) not cover employees in relation to general building and construction work

  (2B)   If the agreement is a multi - enterprise agreement that is not a greenfields agreement, the FWC must be satisfied that the agreement does not cover employees in relation to general building and construction work .

Requirement that the group of employees covered by the agreement is fairly chosen

  (3)   The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

  (3A)   If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

  (4)   The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

  (4A)   The FWC must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

  (5)   The FWC must be satisfied that:

  (a)   the agreement specifies a date as its nominal expiry date; and

  (b)   the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes

  (6)   The FWC must be satisfied that the agreement includes a term:

  (a)   that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

  (i)   about any matters arising under the agreement; and

  (ii)   in relation to the National Employment Standards; and

  (b)   that allows for the representation of employees covered by the agreement for the purposes of that procedure.