New Model Terms – Enterprise Agreements

As of 26 February 2025, you’ll need to be across new model terms for enterprise agreements.

The Fair Work Commission (FWC) now has the power to determine model terms within an EBA, replacing the previous system where the terms were prescribed by the Fair Work Regulations. Throughout a period of consultation, employer and employee groups made submissions to the FWC. Broadly speaking, the majority of changes proposed by the ACTU made it to the final cut.

However, in response to lobbying by industry groups, the full bench retained the ‘definite decision’ trigger with respect to consultation and has maintained that major workplace change only triggers consultation when change relates to ‘production, program, organisation, structure or technology’.

These new terms do have some tricky clauses that might catch you unaware if you’re not careful. For example, in the new dispute resolution clause, an application can be heard by the commission in certain circumstances, even where an employee or their representative has not yet attempted to resolve the dispute internally. We hope that all parties take a pragmatic approach to the application of this term. As you know, in the main, disputes are best resolved at the coalface.

A quick snapshot of the changes:

• model flexibility term
  Employers are to provide a written flexibility arrangement proposal to an employee and take reasonable steps to ensure they understand it. An employer must meet with an employee upon request to discuss a flexibility proposal. Flexibility agreements are to describe how the arrangement can be terminated.

• model consultation term
  After making a decision an employer must provide the reasons or justification for the change. An employer must take reasonable steps to communicate the outcome of the consultation (both in relation to major change and rostering). What constitutes a major workplace change now has a lower threshold: “likely to have a significant effect’ and now includes job security as a new matter.

• model dispute terms
  A union that is simply entitled to represent the industrial interests of employees and not a union party to the EA or dispute is now allowed to be a party to a dispute. As above, the FWC may deal with a referral if it considers appropriate to do so even in circumstances where the parties have not attempted to resolve the dispute at the workplace level.

  Helpfully, the model terms will not override terms agreed to between the parties to an agreement or instrument where the terms meet the requirements of the FW Act. However, if an agreement is silent or non-compliant, the model terms will be inserted during the approval process. We all love an undertaking!  

Lessons for the Real People

1. Know your model terms from your model terms. Make sure you are using the most up-to-date terms as published by the Fair Work Commission.
2. Understand that there are lowered and new thresholds for triggering consultation and dispute terms.
3. Review your internal policies and procedures to ensure that they do not contradict the new terms.

REMEMBER: The FWC has the powers to amend these clauses from time to time. The sensible approach would be to refer to these terms rather than replicate in internal policies and procedures to avoid them from going out of date.

• Further Reading: Model Terms for Enterprise Agreements

Inherent Requirements of the Role – Drivers Licencing

This is an important decision for any operators out there dealing with medical issues and inherent requirements of the role. In this case an appeal was rejected, even where there was a possibility that a licence would be returned.

It goes without saying that you should always seek your own advice when dealing with these issues, as each case will be nuanced and turn on the facts of the matter.

The facts of the case:

1. The applicant was employed as a car washer and yard hand. The job involved washing and detailing cars, moving them, and providing the customer valet service; around 80% of the role comprised of moving vehicles.
2. He experienced a medical episode while driving one of the employer’s vehicles. He blacked out, wrote-off the vehicle he was driving and struck a private vehicle. Fortunately, no one was seriously injured
3. The applicant’s driver licence was suspended for six months, to be restored only after medical certification of fitness-to-drive
4. Throughout the period of the applicant’s absence, the employer’s operations had been adversely affected as a direct result. They were ‘struggling due to not having a full-time person in the role’.
5. The applicant had not provided any medical evidence. All updates were verbal. There were also significant periods of time that the applicant did not respond to employer requests for contact.
6. The applicant contended that his licence would be restored at the six-month mark.
7. Around four months into the suspension, the employer dismissed him after considering if any alternate duties could be provided, which there were not.

At the initial proceedings, quite a lot of consideration was given to the issue of harshness, especially that of the employer dismissing the applicant prematurely.

Important issues for consideration

Here are some of the important highlights in the decision that might be relevant to you when considering the ability of a person to meet the inherent requirements of their driving position:

1. At the time of termination, it was not known whether the driver’s licence would be restored. Noting that the employer was not in a position to assess the likelihood or otherwise of the medical assessment making a favourable decision as to fitness-to-drive.
2. Restoration of licence was dependent on medical certification of fitness-to-drive and the licencing authority.
3. The assessment of harshness ‘is not made in hindsight but by reference to known and reasonably known facts which existed at the time of dismissal’.

Despite the unknowns present at the time of dismissal, this case further supports the well-established rationale that the commission does not stand in the shoes of the employer deciding what they could or should have done. The issue is whether what the employer actually did is considered overall and objectively harsh, unjust or unreasonable.

I encourage you to read the original decision and appeal in full.

• Appeal: Lambert v Ducala Pty Ltd (t/a Northpoint Toyota) [2025] FWCFB 57; BC202503307
• For the original decision: Lambert V Ducala Pty Ltd (T/As Northpoint Toyota) [2025] FWC 27; BC202500067

Changes to alcohol and drug policies: The importance of effective communication

In what can only be described as mind-boggling, the Fair Work Commission has ruled in favour of an employee with two previous warnings for breaches of the drug and alcohol policy, who came in with a BAC of 0.017 after they determined that the employer had not taken ‘all reasonable steps to communicate with employees about a change in policy’ from a BAC of 0.02 to zero.

Let’s look at the steps the employer did take:

1. It followed all steps as recommended by its own WHS Committee.
2. They sent a text message and email to employees on personal phone and email – reference “Drug and Alcohol Policy”.
3. Held two general toolbox talks where the policy change was communicated.
4. Put up posters and flyers around the workplace (although, eeek… the one on the HR noticeboard was the old one #awkward).

The Commission accepted that while the employer took some steps to communicate the changes of the Drug and Alcohol Policy to employees and that the changes were lawful and reasonable having regard to the safety-critical environment, the steps taken were inadequate and not appropriate for employees who operate machinery and do not regularly use computers at work.

Therefore, while the reason for dismissal was valid, the Commission accepted the applicant’s submissions that they were not aware of the new policy due to the inadequate steps taken by the employer. They deemed the termination harsh and unreasonable and ordered reinstatement.

Lessons for the masses

If, like me, you’re sitting there with your mouth open, gobsmacked, here are the things that would have satisfied the commission:

1. Direct conversations with employees, such as a dedicated training session for important changes to key policies, like drug and alcohol.
2. Ensure employees provide a signed confirmation to say that they have received and understood the new policy, making notes of any refusal (or other similar evidence).
3. Make it clear in any correspondence regarding the new policy that there is a CHANGE to the policy.
4. Don’t rely on personal phones and emails for important information if the employees are not able to access them at the workplace. Bus drivers: we see you!
5. Ensure that all old references to policies and procedures are removed from noticeboards, handbooks and the like.

Ok, well, that seems reasonable when you put it like that.

There’s more to unpack in this case; to read all about it see:

• Hancock v Sydney International Container Terminals Pty Ltd [2025] FWC 516; BC202501882

Can’t Touch This: FWC rules in favour of CDC for terminating employee using mobile phone while driving a bus

Making it through as a last-minute inclusion to the newsletter (and allowing me to reference MC Hammer), sanity prevails in this unfair dismissal case where the applicant’s appeal was dismissed by a full bench who found that the employer had a valid reason to terminate their employment, despite a perceived ‘deficiency in procedural fairness’.

Despite being caught on CCTV, the applicant still attempted to convince the Commission that they were in possession of a ‘devotional diary’, not a mobile phone when operating the bus. Fortunately, in the Commissioner’s twenty reviews of the footage and re-enactment, they were not convinced.

You don’t need to be told (but, I’m going to anyway) that the implications of this case, if it had gone the other way, would have been very worrying for the industry. The offence is not only a serious breach of any operator’s company policy but unlawful.

I’m sure the team at CDC breathed a sigh of relief when the decision came through.

• Singh v CDC NSW Region 4 Pty Ltd [2025] FWCFB 78; BC202505152