How to End or Amend an Enterprise Bargaining Agreement

An Enterprise Bargaining Agreement (EBA) needs to include a nominal period that outlines the length of the agreement. If the nominal period has lapsed, both employees and employers can begin renegotiation. However, if the agreement is still in existence within the nominal period, are you able to vary or terminate the agreement? There are few factors to consider which can determine whether an EBA can be varied or terminated.
Termination by Agreement
Although a nominal period may not yet be reached, it is possible to terminate an EBA at any time. This can, however, only occur if all parties have agreed to the termination. In most cases, this occurs through a secret ballot. The vote needs to be publicised to all employees and details of the time, location and procedure need to be set out. A majority of votes needs to be met to approve the termination of the EBA.
Once a successful ballot has been finalised, the requisite forms (either Form 24 or Form 28) need to be lodged with the Fair Work Commission within 14 days of the ballot taking place. As with the approval of the EBA, the Fair Work Commission needs to decide whether:
- the termination of the agreement was appropriate in light of the union’s views;
- employees genuinely agreed to terminate the agreement; and
- employees were provided with a sufficient opportunity to decide.
After Nominal Expiry Date
An EBA has a nominal expiry date and after this date has lapsed it leaves it open for any of the parties to apply for the termination of the agreement. Once again the Fair Work Commission needs to decide whether the termination can be fulfilled. Termination will come into effect if the commission believes that it is not contrary to the public interest to do so and that a termination will be appropriate in the particular circumstance.
Individual Flexibility Arrangement
An individual flexibility arrangement (IFA) is not necessarily a termination of the EBA. That said, all EBAs do need to include a clause allowing both the employer and employee to introduce an IFA. The arrangement can vary the terms and conditions of the EBA. It needs to be genuinely agreed upon by both the employer and the employee and similarly to the EBA, also needs to meet the “better off overall” test.
Variation
Employers and employees can also agree to vary an EBA. These variations, however, do need to be approved by the Fair Work Commission. The variation also needs to be endorsed by a vote and needs to be lodged within 14 days of the change. There is also another way that an EBA can be amended. Any party to an EBA can request the Fair Work Commission to consider a variation of the agreement if it is particularly ambiguous or uncertain.
Conclusion
There are various ways an Enterprise Bargaining Agreement can be terminated or varied. If you are an employer experiencing a transition in your enterprise or an employee looking to initiate changes in your Enterprise Bargaining Agreement, speak to our team of specialist employment lawyers who can provide you with guidance on the process of termination or varying your agreement.
Corporate Governance 101: Responsibilities for New Directors
Wednesday 27 April | 11:00 - 11:45am
Online
Rogue Directors and Business Divorces: How to Remove a Director
Thursday 28 April | 11:00 - 11:45am
Online
Employment Essentials for Tech Businesses
Thursday 5 May | 11:00 - 11:45am
Online
How to Protect and Enforce Your Trade Mark
Wednesday 11 May | 11:00 - 11:45am
Online
How Franchisors Can Avoid Misleading and Deceptive Conduct
Wednesday 18 May | 11:00 - 11:45am
Online
New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects
Wednesday 25 May | 10:00 - 10:45am
Online
How to Expand Your Business Into a Franchise
Thursday 26 May | 11:00 - 11:45am
Online
Day in Court: What Happens When Your Business Goes to Court
Thursday 2 June | 11:00 - 11:45am
Online
How to Manage a Construction Dispute
Thursday 9 June | 11:00 - 11:45am
Online
Startup Financing: Venture Debt 101
Thursday 23 June | 11:00 - 11:45am
Online
Was this article helpful?
We appreciate your feedback – your submission has been successfully received.
About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.
By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.
If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.