You have just taken over payroll or HR, inherited a workforce through a purchase or restructure, or been told by a manager that the business is "covered by an EBA" without anyone being able to produce the document. Your first job is to identify the industrial instrument that actually sets your employees' minimum pay and conditions. Getting this wrong is how underpayments start, and for many businesses the instrument in question is a registered enterprise agreement, still commonly called an EBA.
By the end of this process you will have the registered copy of the agreement, the Fair Work Commission's approval decision, and a short written register confirming which of your employing entities and roles the agreement covers, together with the dates that matter. Two assumptions usually need correcting along the way. First, the Commission's register is a document search, not an ABN lookup, so finding the right document takes a little technique. Second, an agreement does not stop applying when its nominal expiry date passes. It keeps operating until it is replaced or terminated.
What to gather before you start
Assemble the following before you start searching:
- The exact legal name and ABN or ACN of each employing entity: Trading names change, and agreements are registered in the employer's legal name, so check your ASIC records and keep a list of every variation.
- Any pay slips, employment contracts, letters of offer and onboarding documents that might name the agreement: Pay slips sometimes carry an agreement code or award reference.
- Access to the Fair Work Commission's Document Search, which is free and public, and to the Fair Work Ombudsman's pay tools.
- The names of managers, payroll officers or employee representatives who may know which agreement has been applied historically.
- A note of every name the business has traded under, including names used before you acquired it.
The item that trips people up is the entity name. If your company has rebranded, been restructured or changed ABN, search the old names too. Agreements stay on the register under the name they were approved under, not the name you use today.
Work through the search and verification steps
Search the Commission's agreement database
The Fair Work Commission publishes all current agreements and details of past agreements on its website. Its Document Search tool matches agreement titles, and agreement titles almost always contain the employer's name:
- Put the trading name or legal name in quotation marks, for example "Brightside Plumbing".
- If you get many results, add a location or a distinguishing word from the business name.
- Try the legal name, the trading name and any former names as separate searches.
- The Commission's guidance also suggests adding the ABN, which usually appears inside the agreement and its approval decision.
- If you still cannot find the agreement by title, download the Commission's list of all agreements made since 1994 (an Excel file updated regularly) and search it by year, industry, agreement ID or matter number.
Each entry records the agreement's title, its agreement ID, its matter (case) number and the year it was made. When you find a candidate, open it and also locate the Commission's decision approving the agreement, which records the coverage the Commission accepted and any undertakings given. If your search comes up empty, consider whether the employer sits outside the federal system at all. For example, from 1 January 2023 all WA local governments and regional local governments are covered by the state industrial relations system rather than the Fair Work system, so their agreements are not on the Commission's register.
Check your internal records and ask the people who know
Before concluding that no agreement exists, look through HR drives, payroll systems and onboarding packs for a copy. Ask long-serving managers and payroll officers which agreement has been applied historically, and ask your payroll provider whether the system references an agreement code. If the workplace is unionised, employee representatives may hold a copy or know the agreement's number.
If your searches and your internal records both come up empty, the business is probably not covered by an enterprise agreement at all, and your employees will be covered by the modern award that matches the industry and their occupations. While an enterprise agreement applies to particular employment, the relevant modern award does not (s 57 of the Fair Work Act 2009 (Cth)), so once you confirm there is no agreement, identify the award using the Fair Work Ombudsman's Pay and Conditions Tool and implement its terms instead.
Confirm the agreement covers your employing entity
This is the step where the process usually succeeds or fails. Under s 53 of the Fair Work Act 2009 (Cth), an enterprise agreement covers an employer or employee if the agreement is expressed to cover them, however that is described. So read the coverage clause inside the agreement, not just the title:
- Check the named employer, ABN or ACN against the exact entity you employ staff through.
- Check any sites, locations or operations listed in the coverage clause.
- Check the excluded categories, since executive-level employees are commonly carved out.
- Repeat the search for every employing entity in a group, because a group can have different agreements for different entities.
An agreement only applies to an employee where it is in operation, it covers the employee, and no other provision of the Act says otherwise (s 52). The approval decision records what the Commission accepted about coverage at approval, so read it alongside the agreement itself.
Note the dates that drive compliance
Every agreement has three dates that matter:
- The approval date, being the day the Commission approved it.
- The operative date, because under s 54 of the Fair Work Act 2009 (Cth) the agreement operates from 7 days after approval, or a later day if the agreement specifies one.
- The nominal expiry date, being the date specified in the agreement itself. The Commission cannot approve an agreement whose nominal expiry date is more than 4 years after approval (s 186(5) of the Fair Work Act 2009 (Cth)).
The common mistake is treating the nominal expiry date as an end date. It is not. An agreement continues to operate after its nominal expiry date until it is terminated by the Commission or replaced, and once it has ceased to operate it can never operate again (s 54(2)). Only one enterprise agreement can apply to an employee at a time, and a later agreement cannot apply to an employee until the earlier agreement has passed its nominal expiry date (s 58). These rules drive when you can realistically bargain for a replacement, so record the dates now and put them in the calendar.
Read the mandatory terms
An approved agreement will contain mandatory terms that each affect how you run payroll and rosters:
- A dispute resolution term, which must provide a procedure allowing the Commission or another independent person to settle disputes about matters under the agreement (s 186(6) of the Fair Work Act 2009 (Cth)).
- A flexibility term, which lets an employee and employer agree an individual flexibility arrangement varying the agreement's effect to meet their genuine needs (ss 202-203 of the Fair Work Act 2009 (Cth)). If you use flexibility arrangements, check that yours comply and that each employee is better off overall.
- A consultation term, which requires you to consult employees about major workplace change likely to have a significant effect on them, and about changes to regular rosters or ordinary hours, and to allow them representation in that consultation (s 205 of the Fair Work Act 2009 (Cth)).
The agreement must also sit within the National Employment Standards. Section 55 of the Fair Work Act 2009 (Cth) provides that an enterprise agreement must not exclude the NES, and terms that contravene that requirement have no effect (s 56). The NES cover maximum weekly hours, leave entitlements, public holidays, notice of termination and redundancy pay, and the other minimums listed in s 61, and they apply on top of whatever the agreement provides.
Check for variations, terminations and replacements
Agreements are regularly varied by the Commission, so make sure you hold the current version. Search the Commission's decisions for any variations affecting your agreement, and check its list of terminated agreements, which is updated monthly, to confirm your agreement has not ended. Once an agreement is terminated, its document is no longer published, so if you need a copy for historical purposes, keep it while the agreement is still live. If the agreement has passed its nominal expiry date, the employer, an employee or an employee organisation covered by it can apply to the Commission to terminate it (s 225 of the Fair Work Act 2009 (Cth)), but nothing happens automatically.
Keep a register and an audit trail
Save the agreement PDF, the approval decision and any variation decisions in a secure HR folder, and keep a simple register recording:
- the agreement title, agreement ID and matter number;
- the employing entities and roles it covers;
- its approval date, operative date and nominal expiry date;
- its status, being in operation, past nominal expiry, under variation or terminated;
- links to the documents.
That register becomes the basis for payroll configuration, staff onboarding and any future due diligence, and it is the first thing a lawyer or auditor will ask for.
The places this process most often stalls:
- Searching under the wrong name: Agreements sit on the register under the employer's legal name, not the brand, so search former names and ABNs as well.
- Stopping at the title: A document with your company's name in the title still needs the coverage check, because agreements often exclude some entities, sites or employee classes.
- Treating nominal expiry as the end: Past its nominal expiry date, the agreement still applies until it is replaced or terminated.
- Overlooking pre-2010 agreements: Agreements made before the Fair Work Act can still be in operation. Pre-2010 agreements that had not yet ended have now automatically terminated, or sunsetted, unless the Commission extended their default period on an application made before 7 December 2023, so check the Commission's guidance on zombie agreements if your business has a long history.
Where you need professional help
The search steps are straightforward, but the verification is legal work. A lawyer will usually:
- confirm which entity is the employing entity and whether the coverage clause catches it, including across restructures and acquisitions;
- map roles to classifications and check rates against the agreement and the underlying award, including how the better off overall test was applied at approval (s 193 of the Fair Work Act 2009 (Cth));
- advise on whether the agreement is still in operation and how its nominal expiry date affects your ability to bargain for a replacement;
- identify terms that contravene the National Employment Standards and so have no effect;
- prepare and lodge an application to vary or terminate an agreement after its nominal expiry date;
- advise on transfer of business issues if you are buying or selling, because under Part 2-8 of the Fair Work Act 2009 (Cth) a transferable instrument such as an enterprise agreement can follow transferring employees to the new employer (s 313), and the Commission can make orders about whether it does (s 318);
- draft individual flexibility arrangements and the supporting paperwork.
If you are acquiring a business, have the seller's agreement and its payroll implementation reviewed before completion, not after. Underpayments surface in due diligence more often than buyers expect, and the seller's agreement can follow the workforce to you.
The coverage check decides whether this process works
The single step that determines whether this process succeeds is the coverage check. Finding a PDF with your company's name on it is not the same as the agreement applying to your business, because the register search returns documents, not answers. If you do not confirm that the agreement is expressed to cover your exact employing entity, your sites and your roles, you can apply the wrong rates in every pay run and only discover the mistake in a backpay claim.
The practical sequence is to search the Commission's database under every name the business has used, verify coverage and the three dates against the agreement and the approval decision, read the mandatory terms that drive payroll and consultation, and keep a register of what you found. Where coverage is doubtful, or where bargaining, variation or termination is on the horizon, take the documents to an employment lawyer before acting, not after an underpayment is discovered.