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.


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.


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.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Kristine Biason

Get a Free Quote Now

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • We will be in touch shortly with a quote. By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.

Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at

View Privacy Policy