Home | Member Updates | Feedback sought on draft FWC statement of principles on genuine agreement

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022(SJBP Act) requires the FWC to develop a “statement of principles” for ensuring that employees have “genuinely agreed” to an enterprise agreement.

The Explanatory Memorandum to the SJBP Act states that the statement of principles will “guide parties as to how the FWC will consider particular issues when determining whether the enterprise agreement has been ‘genuinely agreed’. These scenarios could include issues such as whether bargaining genuinely occurred prior to voting and whether employee organisation bargaining representatives were appropriately involved in bargaining”.

The statement of principles would be required to deal with the following matters:

• informing employees of bargaining for a proposed enterprise agreement;
• informing employees of their right to be represented by a bargaining representative;
• providing a reasonable opportunity for employees to consider a proposed agreement;
• explaining the terms of a proposed agreement and their effect;
• providing a reasonable opportunity to vote in a free and informed manner, including by providing information about the time, place and method for the vote;
• any matter prescribed by the FW Regulations;
• any other matters the FWC considers relevant.

As the explanatory memorandum elsewhere makes clear the intention of the statement is“…is to simplify detailed and complex pre-approval requirements to encourage enterprise bargaining and ensure the FWC is not required to refuse to approve an agreement due to minor technical or procedural deficiencies despite the agreement being supported by a majority of employees after collective bargaining in good faith”.

Further background and legislative context can be found here.

Consultation re draft statement of principles

On 3 March, following preliminary consultation with peak councils, employer associations and union stakeholders, the FWC releaseda draft statement of principles and invited interested stakeholders to make submissions in relation to the draft by not later than COB 30 March 2023. For further details on the consultation process and timetable followed by the FWC click here and here.

To inform AHEIA’s submission on the draft members are invited to provide their written feedback by not later than COB 23 March 2023.  We would be particularly interested in members’ comments with respect to paragraphs 12, 13, 14 and 19 of the draft.

The draft statement will also be a topic of discussion at this Friday’s EB Dial-In at 2pm AEST.

If you wish to provide feedback on the draft please email this through to Catherine Pugsley at catherine.pugsley@aheia.edu.au