Terms and dates to put in an agreement

The Agreement may contain terms that are financial (‘monetary’) benefits and non-financial. Some terms are mandatory and have to be in an agreement.

Include a delegates’ rights term that provides for the exercise of the rights of workplace delegates. 

How to write the term

You can either:

• use the text from:
  • the delegates’ rights term in a modern award that covers the workplace delegates 
    OR
  • if more than one modern award covers the workplace delegates, the most favourable delegates’ rights term from those awards
• draft your own term that is no less favourable than the delegates’ rights term in the modern award (or awards) that covers the employees.

If the term is less favourable

The most favourable delegates’ rights term from the modern award (or awards) that cover the workplace delegates will apply AND the delegates’ rights term in the agreement has no effect.

You do not need to include a delegates’ rights term in an agreement if:
•    employees were asked to vote on the agreement before 1 July 2024; AND
•    by that vote, the employees approve the agreement (this can occur on or after 1 July 2024).

Include a coverage term to set out which employees the agreement will cover. It’s common to specify:

• the employer
• which employees the agreement will cover
• work that the employees will perform
• locations where the employees will do the work.

Include a dispute settlement term to explain the process to solve problems. Your agreement must address disputes between the employer and employee about:

• the contents of the agreement
• the National Employment Standards.

The term must let or make someone settle a dispute. This person:

• can be the Fair Work Commission or another independent person
• cannot be only the managing director of the employer
• cannot be a disputes board with officials from a union the agreement covers.

The term must let employees have a representative during the dispute.

How to write the term

You can either:

• use the text from the Fair Work Regulations 2009: Model term for dealing with disputes for enterprise agreements OR
• draft your own term that meets the rules in section 186(6) of the Fair Work Act 2009.

If this term is missing or incorrect

The Commission may approve the agreement with undertakings.

Include a consultation term to say you will consult with employees about:

• a workplace change with a major impact AND
• a change to the regular roster or ordinary hours of work.

The consultation term must allow employees to have a representative during consultations.

For changes to the regular roster or ordinary hours, the term must require the employer to:

• give employees information about the change
• invite employees to give their views about the change
• consider the views of employees.

How to write the term

You can either:

• use the text from the Fair Work Regulations 2009:  Model consultation term OR
• draft your own term that meets the rules in section 205 of the Fair Work Act 2009.

If this term is missing or incorrect

The consultation term in schedule 2.3 of the Regulations will apply.

A flexibility term allows you to make an individual flexibility arrangement (IFA) with an employee. This IFA can change the effect of the terms you specify. The employer or the employee must have a genuine need for an IFA.

How to write the term

You can either:

• use the text from the Fair Work Regulations 2009: Model flexibility term OR
• draft your own term that meets the rules in sections 202, 203 and 204 of the Fair Work Act 2009.

If this term is missing or incorrect

The flexibility term in schedule 2.2 of the Regulations will apply.

An agreement starts 7 days after the Commission approves it.

You may choose a later start date and ask us to approve it. For example, you may need time to update your payroll system.

Include a nominal expiry date to say when the agreement will, in theory, end. This can be any time up to 4 years after the date the Commission approves it.

The agreement does not end on that date. It continues to operate after the nominal expiry date. It only stops when the Commission replaces or terminates it.

Employees may receive benefits that are financial (‘monetary’) and non-financial. Agreements usually contain the following terms and clauses:

• definitions or glossary to explain what words mean
• hours of work
• classification structure and rates of pay
• penalty and overtime rates
• allowances
• breaks
• deductions authorised by an employee
• a definition of shiftworkers for the purposes of the NES
• the relationship between the agreement and the relevant modern award*

For more information see section 54, section 58 and section 186(5) of the Fair Work Act 2009.

It is good practice to put an NES precedence term in an agreement.

We often see errors when an agreement does not meet the NES, which an NES precedence term can fix. See Meet the terms in the National Employment Standards.