On 17 September 2024, President Hatcher issued a Statement commencing the process of making new model terms for enterprise agreements (Model Terms) and a new model dispute resolution term for copied State instruments (17 September Statement). This process has commenced under amendments to the Fair Work Act 2009 (Cth) (FW Act) made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (CL2 Act). On the same date, the Commission also published a background paper on model terms for enterprise agreements (Background Paper).

The Business Council of Australia (BCA) represents over 130 of Australia’s leading businesses, which employ more than 1.1 million Australians. Our members operate in a range of industries, including manufacturing, construction and infrastructure, information technology, mining, retail, financial services and banking, energy, professional services, transport, health and telecommunications.

We welcome this opportunity to provide a submission on the Model Terms. Our submission is focused on the Model Terms for enterprise agreements and does not deal with copied state instruments. Those Model Terms are the flexibility term, the consultation term and the dispute resolution term. Where a proposed enterprise agreement is made that does not include consultation and/or flexibility terms that comply with the FW Act, the relevant Model Terms are taken to be a term of those enterprise agreements.2 Therefore, the content of those terms is vitally important to all employers who engage in enterprise bargaining with their employees.

In short, our submission is that the Model Terms to be drafted by the Commission should, subject to some minor amendments set out below, reflect the existing Model Terms prescribed by the Fair Work Regulations 2009 (Cth) (FW Regs), remaining consistent with most modern awards. In the latter case, these terms were subject to extensive consultation and debate at the time of their drafting, are well understood by all relevant stakeholders, and strike the right balance between the operational requirements of employers and the needs of employees. They have balanced the needs of all stakeholders continuously since 2009 (and beyond) despite many major changes occurring during the last 15 years, and as such, continue to reflect best practice workplace relations. We discuss in more detail each of those terms in the full submission.

Read the full submission here.