Section 205 — Fair Work Act 2009 (Cth)

Consultation term must be included in an enterprise agreement

(1) An enterprise agreement must include a term (a consultation term) that:

(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about:

(i) a major workplace change that is likely to have a significant effect on the employees; or

(ii) a change to their regular roster or ordinary hours of work; and

(b) allows for the representation of those employees for the purposes of that consultation.

(1A) For a change to the employees’ regular roster or ordinary hours of work, the term must require the employer:

(a) to provide information to the employees about the change; and

(b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

(c) to consider any views given by the employees about the impact of the change.

Model consultation term

(2) If an enterprise agreement does not include a consultation term, or if the consultation term is an objectionable emergency management term, the model consultation term is taken to be a term of the agreement.

(3) The FWC must determine the model consultation term for enterprise agreements.

(4) In determining the model consultation term, the FWC must:

(a) ensure that the model term is consistent with the requirements set out in subsections (1) and (1A); and

(b) take into account the following matters:

(i) whether the model term is broadly consistent with comparable terms in modern awards;

(ii) best practice workplace relations as determined by the FWC;

(iii) whether all persons and bodies have had a reasonable opportunity to be heard and make submissions to the FWC for consideration in determining the model term;

(iv) whether the model term would, or would be likely to have, the effect referred to in paragraph 195A(1)(a), (b), (c) or (d) (objectionable emergency management terms);

(v) the object of this Act (see section 3), and the objects of this Part (see section 171);

(vi) any other matters the FWC considers relevant.

Note 1: The FWC must be constituted by a Full Bench to make the model consultation term (see subsection 616(4A)).

Note 2: For the variation of a determination, see subsection 33(3) of the Acts Interpretation Act 1901.

(5) To avoid doubt, subsections (1) and (1A) do not limit the matters the model consultation term may deal with.

(6) A determination under subsection (3) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

Related sections

• s 202 — Enterprise agreements to include a flexibility term etc.
• s 203 — Requirements to be met by a flexibility term
• s 204 — Effect of arrangement that does not meet requirements of flexibility term
• s 205A — Enterprise agreements to include a delegates’ rights term etc.
• s 206 — Base rate of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate etc.
• s 207 — Variation of an enterprise agreement may be made by employers and employees

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