Application to vary an Enterprise Agreement during the COVID-19 Pandemic

In response to the COVID-19 pandemic, the Fair Work Amendment (Variation of Enterprise Agreements) Regulations 2020 has shortened the access period for a proposed variation of an enterprise agreement from the usual 7 days to 1 day. This means that the period that employees must have access to a copy of the proposed variation of an enterprise agreement is now 1 calendar day.

In other words, the employer is still required to follow steps 1 to 4 of the usual process (as set out below), however, the vote can take place on the second day after issuing the How and When for Approval Letter and a copy of the amended agreement. The employer must still hold a discussion meeting during the “Access Period” and the requirement that the FWC be satisfied that the employees covered by the agreement have genuinely agreed to the variation remains, including that the employer must take all reasonable steps to provide employees with a copy of the proposed variation and any other incorporated material.

This amendment only applies to access periods that start on or after 17 April 2020 and will remain in force for the next 6 months unless altered upon review.

These changes were introduced to assist businesses to deal more swiftly with urgent issues that are arising in their workplaces as a result of COVID-19.

General process for making an application to vary

The usual process for making an application to vary an enterprise agreement requires the following steps to be undertaken:

1. the employer is required to issue the employees with a How and When for Approval Letter and a copy of the amended agreement to re-commence the “Access Period”. The “Access Period” is the 7 days following the issue of the How and When for Approval Letter and a copy of the amended agreement;
2. the employer must hold a discussion meeting to explain the variation and the effect of the variation during the “Access Period”;
3. the employer must then hold a vote on the 8^th day after issuing the How and When for Approval Letter and a copy of the amended agreement; and 
4. if the Variation is made, the employer is required to make the application to vary the enterprise agreement to the Fair Work Commission (FWC).

Disclaimer: This summary is a guide only and is not legal advice. For more information on legislative or contractual obligations, call Lauren Howe, CTI Lawyers on 1300 361 099 or email [email protected].