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Changes to enterprise agreement disclosure

Posted on : Friday, 2 March 2018

Recent changes to the Fair Work Act have seen some significant requirements being placed on negotiating parties to enterprise agreements.

 

Following the passage of the Fair Work Amendment (Corrupting Benefits) Regulations 2017, negotiating parties - or bargaining representatives - for proposed enterprise agreements are now required to produce documentation disclosing certain financial elements.


These disclosure obligations (sections 179 and 179A) have been introduced to respond to Recommendation 48 of the Final Report of the Royal Commission into Trade Union Governance and Corruption.

 

Summary of disclosure requirements

 

Pursuant to sections 179 and 179A of the Fair Work Act, certain bargaining representations for a proposed enterprise agreement (employers, employee representatives and unions) are required to disclose financial benefits that the bargaining representative or a person or body reasonably connected to it, would or could reasonably be expected to derive because of a term of the proposed agreement.

 

Sections 179 (unions) and 179A (employers) of the Act set out the process for the disclosure of financial benefits by unions and employers.

 

For unions, they are required to give a disclosure document to the employer, who must then take all reasonable steps to provide the document to employees before any vote on the proposed enterprise agreement.

 

For employers, they must take all reasonable steps to prepare and sign a disclosure document directly to employees before they vote on the proposed agreement.

 

Failure to comply with these requirements can give rise to civil remedies but do not preclude approval of the enterprise agreement by the Fair Work Commission.

 

Subsection 179 (4) (in relation to unions) and 179A (3) (in relation to employers) set out the requirements relating to the content of a disclosure document. These requirements include that the document must itemise the beneficial terms of the agreement, describe the nature and (as far as reasonably practicable) amount of each disclosable financial benefit, name each beneficiary and be in accordance with any other requirement prescribed by the regulations.