Negotiating enterprise agreements in Newcastle, Sydney and New South Wales.

Many employees and employers in Australia negotiate terms and work under the conditions set out in an enterprise agreement. Our experienced solicitors help employers in a wide range of industries with negotiating enterprise agreements and assist in the bargaining process. If you need assistance in drafting or negotiating an enterprise agreement, email us at or call us on (02) 4929 7002.

What is an enterprise agreement?

An enterprise agreement is a set of terms that provide the minimum workplace conditions for an employee of a particular employer.  Enterprise agreements replace an otherwise applicable modern award.  Enterprise agreements typically set out the minimum wage and conditions for employees, and may deal with other matters that would otherwise be set by a modern award.

An enterprise agreement cannot provide terms less beneficial than the National Employment Standards and other parts of the Fair Work Act 2009 (Cth). An enterprise agreement is negotiated by the parties in good faith through collective bargaining. All enterprise agreements are reviewed by the Fair Work Commission.

What must be included in an enterprise agreement?

An enterprise agreement must include terms about the relationship between each employer and the employees covered by the agreement. Trade unions may also be covered by an enterprise agreement.

The Fair Work Act sets out the required terms of an enterprise agreement and a framework that assists employers and employee to bargain in good faith to reach an agreement.

What is unlawful content in an enterprise agreement?

As an employer or employee, it is important to be aware of unlawful content set out in the Fair Work Act which cannot not be included in an enterprise agreement.

‘Discriminatory’ terms are unlawful content in an enterprise agreement. The Fair Work Act (2009) classifies any term that discriminates against an employee because of, or for reasons including, race, colour, sex, sexual orientation, age, physical or mental disability, marital status, pregnancy, religion, family or carer’s responsibilities as a direct ‘discriminatory’ term. These terms effect deliberately treat an employee or class of employees less favourably than others.

It is important to note that some terms may discriminate but are not necessarily considered to be unlawful content. An example of this may be a term which relates to the inherent requirements of the position.

The Better Off Overall Test (BOOT)

A key factor in negotiating an enterprise agreement is the Better Off Overall Test. This requires the employee and employer to consider the advantages and disadvantages to the relevant award and include terms in the enterprise agreement which ensure current and prospective employees are better off.

It is important to note the Better Off Overall Test (BOOT) requires an overall assessment the terms which will cover current and prospective award employees. Employers may negotiate for some award benefits to be reduced, so long as the terms of the agreement are more beneficial to employees overall. This is important because the Fair Work Commission must be satisfied that the agreement passes the Better Off Overall Test (BOOT) in order to approve the enterprise agreement.

What you should know about Enterprise Agreement approval?

Enterprise Agreements are made under the Fair Work Act under a simple and fair framework that helps employers and employees bargain in good faith. Click here to read more about the enterprise agreement approval process.


“We needed a new standard contract for our employees that complied with the relevant award conditions. We wanted a document that was short and easy to understand. Butlers drafted a standard agreement that we could use for our employees and advised on what we needed to do to comply with awards and employment legislation. The team took a practical approach and guided us through this complex area of law.”


Related Articles

enterprise agreements

Our experienced team of solicitors can help you with every aspect of the enterprise agreement negotiation and bargaining process. For expert assistance with your enterprise agreement and employment law matters, emails us on or call us on (02) 4929 7002.