Enterprise Bargaining Reform

Regulation Impact Statement – Attorney-General’s Department

On 9 December 2020, the Government introduced the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 to make wide-ranging reforms to the enterprise bargaining system.

The proposed reforms are intended to reverse the decline of enterprise bargaining and includes changes in the following areas:

• Amending the application of the Better off Overall Test (BOOT) to limit consideration of patterns and kinds of work to those which are reasonably foreseeable, have greater consideration of overall benefits (including non-monetary benefits) and give significant weight to the views of the employer and employees. It also provides limited circumstances for the Fair Work Commission to approve agreements that do not satisfy the BOOT, where it is not contrary to the public interest and it is appropriate, taking into account all the circumstances, such as the views of employees and their representatives.
• Extending the timeframe for employers to issue the notice of employee representational rights (NERR) and clarify how it can be provided to reduce risk of agreements from being challenged on technical grounds at the approval stage.
• Clarifying the voting rights of casual employees in enterprise bargaining processes.
• Allowing new franchisees to opt-in to existing single enterprise agreements made with a group of employers operating under the same franchise.
• Restricting unilateral applications by a party to terminate an enterprise agreement by requiring these applications only to only be made at least three months after the nominal expiry date of an enterprise agreement.
• Supporting the voluntary transfer of employees to an associated entity, without requiring the new business to take on the employees existing industrial instrument.
• Cease pre-Fair Work Act agreements by 1 July 2022.
• Reduce the prescription around current pre-approval requirements and requiring the Fair Work Commission to independently determine agreements within 21 working days, as far as practicable.

The Attorney-General’s Department prepared and certified a Regulation Impact Statement (RIS), which the Office of Best Practice Regulation (OBPR) assessed as good practice.

Please see the RIS for information regarding associated regulatory costings/savings.