Jack de Flamingh, Partner, and Kathryn Peterson, Lawyer, Corrs Chambers Westgarth

Part 2-4 of the Fair Work Act 2009 (Cth) (FW Act) contains detailed provisions regulating the content of enterprise agreements.

These provisions allow certain terms to be included in agreements (“permitted” matters), require other terms to be included (“mandatory” terms), and prohibit others from being included (“unlawful” terms).

Permitted matters in an enterprise agreement include:

• matters pertaining to the relationship between an employer and its employees (the concept of “matters pertaining” to the employment relationship is a long-standing feature of Australian workplace relations law);

• matters pertaining to the relationship between employers and employee organisations;

• deductions from wages that have been authorised by an employee; and

• terms about how the agreement will operate.

Mandatory terms include a nominal expiry date of the agreement, a dispute settlement clause, and flexibility and consultation provisions.

Unlawful terms include discriminatory and “objectionable” provisions, and terms that provide for rights contrary to other provisions of the FW Act dealing with unfair dismissal, industrial action, and union right of entry.

See Terms of enterprise agreements.