New Enterprise Agreement Financial Disclosure Requirements


This training brochure applies to all organisations (excluding Queensland public organisations).

Fair Work Amendment (Corrupting Benefits) Regulations 2017 (Cth)

The Fair Work Amendment (Corrupting Benefits) Regulations 2017 (Cth) (the Amending Regulations) which amended the Fair Work Regulations 2009 (Cth) (the Regulations) commenced on 29 January 2018.

Disclosure by organisations regarding financial benefits

By way of background, section 179 of the Fair Work Act 2009 (Cth) (the Act) provides that where an organisation is a bargaining representative for a proposed enterprise agreement (that is not a greenfields agreement), and as a result of that agreement the organisation will receive or obtain a financial benefit, the organisation is required to take all reasonable steps to ensure that each employer that will be covered by the agreement is given a disclosure document. Section 179(4) of the Act sets out the requirements in relation to the content of that disclosure document.

Organisations should be aware that the Amending Regulations have inserted 2.06AA(1) in the Regulations which prescribes the additional requirements in relation to the content and form of the disclosure document to be prepared under section 179(4) of the Act. More specifically, the new regulation 2.06AA(1) provides that a disclosure document must set out the name of the person (if known by the organisation) who will or can reasonably be expected to provide the financial benefit. Where it is not reasonably practicable to describe the amount of the financial benefit, the disclosure document must set out the basis on which the amount is or will be determined. In addition, regulation 2.06AA(1) requires the disclosure document to be in the form set out in Schedule 2.1A of the Regulations.

Disclosure by employers regarding financial benefits

Organisations will be aware that section 179A of the Act provides that where an employer will be covered by a proposed enterprise agreement (that is not a greenfields agreement), and as a consequence of that agreement the employer will receive or obtain a financial benefit, the employer is required to prepare a disclosure document containing the required information set out in section 179A of the Act.

The newly inserted regulation 2.06AA(2) of the Regulations provides that a disclosure document must set out the name of the person (if known by the employer) who will or can reasonably be expected to provide the financial benefit. Furthermore, where it is not reasonably practicable to describe the amount of the financial benefit, the disclosure document must set out the basis on which the amount is or will be determined.

Finally the new regulation 2.06AA(2) also requires the disclosure document to be in the form set out in Schedule 2.1A of the Regulations.

Timing of application of the new regulation 2.06AA 

It is important to note that the newly inserted regulation 7.02 in the Regulations provides that the additional requirements included in the new regulation 2.06AA discussed above apply in relation to:

  • a disclosure document given by an organisation under subsection 179(1) on or after 29 January 2018;
  • a disclosure document, access to a copy of which is first given, or copies of which are given, by an employer under subsection 180(4B) of the Act on or after 29 January 2018.

Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au