Document ID: chunk:federal_register_of_legislation:F2023L00551:clause:1_4:p7
Version: federal_register_of_legislation:F2023L00551
Segment Type: clause
Provision Reference: sch 1 cl 4 (pt 7/8)
Character Range: 17650–20740

approve the agreement under section 181(1), those employees have voted on whether or not to approve the agreement, and a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement.

NOTE 2: Section 188(5) provides that the FWC may disregard minor procedural or technical errors in relation to sections 180A, 181(2), 182(1) or 182(2), provided that it is satisfied that the employees were not likely to have been disadvantaged by the errors.

Other matters considered relevant

    17.         In considering whether employees have a sufficient interest in the terms of an enterprise agreement as required by section 188(2)(a) of the Fair Work Act, and whether the employees are sufficiently representative as required by section 188(2)(b), the FWC may take into account:

        (a) whether the employees entitled to vote on the enterprise agreement are to be paid the rates of pay provided for in the agreement, and

        (b) the extent to which the employees entitled to vote on the enterprise agreement are employed across the full range of:

             (i) classifications in the agreement

             (ii) types of employment in the agreement (for example, full-time, part-time and casual)

             (iii) geographic locations the agreement covers, and

             (iv) industries and occupations the agreement covers.

    18.         An enterprise agreement will generally not have been genuinely agreed to by the employees covered by the agreement unless the agreement was the product of an authentic exercise in agreement-making between the employer(s) and employees in one or more enterprises, and the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

    19.         If one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees covered by the enterprise agreement:

        (a) supports the approval of the agreement, and

        (b) does not have concerns that the agreement was not genuinely agreed to by the employees covered by the agreement,

    then this should be given significant weight by the FWC in considering whether the agreement has been genuinely agreed.

NOTE: Section 188(2) provides that the FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:
    (a) have a sufficient interest in the terms of the agreement (section 188(2)(a)), and
    (b) are sufficiently representative, having regard to the employees the agreement is expressed to cover (section 188(2)(b)).

Definitions

    20.         In this Statement of Principles on Genuine Agreement:

        (a)                employee organisation means an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009

        (b)               notice of employee representational rights means the notice in Schedule