Collective agreements under the WRA apply to groups of employees employed in a single business or part of a business. Before the Work Choices amendments, collective agreements were called certified agreements. Under the FW Act they are enterprise agreements. The WRA provided for several types of collective agreement, including employee collective agreements, union collective agreements and union greenfields agreements. From 1 July 2009 statutory agreements will be made under the FW Act (see: "Fair Work Act Agreements", below).

Under the WRA: It requires workplace agreements to be approved and, once approved, lodged with the Office of the Workplace Authority (OWA).

Under Work Choices: In all cases, an approved workplace agreement comes into legal effect once it is lodged with the OWA.

The parties may specify a nominal expiry date in the agreement, provided that it is no later than the fifth anniversary of the date the agreement was lodged. If no date is specified in the collective agreement the nominal expiry date is five years from the date it is lodged with the OWA. A collective agreement remains in force until it has passed its nominal expiry date and is terminated under the provisions of Division 9 of Part 8 of the WRA.

Under the WRA multiple business agreements (see: s.331 of the WRA) are made between employers operating a number of single businesses and the employees of those employers or their trade union(s) about the terms and conditions of employment that will apply in the businesses. In substance, it means that a type of collective agreement can be made that can apply to more than one employer who operate a number of single businesses.

Because multiple business agreements are collective agreements, the same rules concerning nominal expiry dates and the period such agreements operate apply. However, if an employer who is party to a multiple business agreement that is in force makes an agreement that applies to a single business covered by that multiple business agreement during its life, the multiple business agreement ceases to operate in relation to the single business.

Under the WRA employer greenfields agreements (see: s.330 of the WRA) are, despite their name, not really agreements at all. This species of "agreement", until now unknown to Australian labour law, entitles an employer who proposes to establish a new business to unilaterally set terms and conditions of employment that will apply to future employees of the proposed business.

The nominal expiry date of an employer greenfields agreement is one year from the date it is lodged with the OWA. However, the parties may specify a nominal expiry date in the agreement, provided that it is no later than the first anniversary of the date the agreement was lodged.

From 1 July 2009 statutory agreements will be made under the FW Act. They will be known as enterprise agreements. Under section 172 of the FW Act there are two types of statutory agreements:

Single enterprise agreements can be made in two ways. Firstly, an agreement can be made between an employer or two or more employers that are single interest employers and employees. A trade union may or may not be covered by this type of agreement. Alternatively, a single enterprise agreement can be made for a genuine new enterprise, between an employer or two or more employers that are single interest employers and one or more trade unions.

Multi-enterprise agreements can also be made in two ways. Firstly, a multi-enterprise agreement can be made between two or more employers that are not single interest employers and employees. A trade union may or may not be covered by this type of agreement. Alternatively, a multi-enterprise agreement can be made for a genuine new enterprise between an employer or two or more employers that are single interest employers and one or more trade unions.

The Transition to Forward with Fairness Act abolishes the Fairness Test (discussed above under "Recent history of industrial regulation") and the concept of protected award conditions for agreements lodged on or after 28 March 2008. Instead, agreements made and lodged between 28 March 2008 and 30 June 2009 will be assessed by the OWA against a "No Disadvantage Test" (NDT) (see following).

From 1 July 2009 an enterprise agreement will need to pass the "Better Off Overall Test" ("BOOT") to be approved by FWA. Section 193 of the FW Act provides that a non-greenfield, enterprise agreement passes the BOOT if FWA is satisfied that each employee and prospective employee would be better off overall if the agreement applied to them than if the relevant modern award applied to them.

Section 189 of the FW Act provides that if an agreement fails the BOOT it may still be approved by FWA if it is satisfied that due to exceptional circumstances the approval would not be contrary to the public interest. An agreement approved on this basis can only have a nominal expiry date of a maximum of two years after approval.

An enterprise agreement under the FW Act should contain:

The content of a workplace agreement is substantially in the hands of the parties. For matters to be included in an enterprise agreement under the FW Act they must fall within one of the following categories:

See: section 172(1) of the FW Act.

An enterprise agreement under the FW Act must not contain a term that is an unlawful term (s.186(4) FW Act). Unlawful terms are defined in section 194 of the FW Act to include:

Under Work Choices: In all cases, an approved workplace agreement comes into legal effect once it is lodged with the OWA.

Under the Transition to Forward with Fairness Act: ITEAs for new employees and greenfields agreements take effect when lodged with the OWA, whereas union collective agreements, employee collective agreements and ITEAs for existing employees will take effect when approved by the OWA (s.347(1) WRA).

The nominal expiry date of a Work Choices collective agreement is the earlier of the nominal expiry date specified in the agreement or five years from the date it is lodged with the OWA. A collective agreement remains in force until it has passed its nominal expiry date and is replaced by another collective agreement (s.347(5) WRA as amended by Work Choices).

A party who breaches a collective agreement may be liable to pay a civil penalty and be ordered to pay any unpaid wages or other amount the court finds was required to be paid by the relevant term of the agreement.

Under the FW Act: Under section 186(5) of the FW Act, the nominal expiry date may be specified in the agreement but must, other than for ITEAs and agreements failing the BOOT but approved on the basis of special circumstances, be no later than four years after the date on which the agreement was approved by the FWA. If no date is specified in a collective agreement, then the nominal expiry date is four years from the date it was approved by FWA.

An enterprise agreement will come into operation seven days after it is approved by the FWA or a later day specified in the agreement (s.54 FW Act). Enterprise agreements will continue to operate after their nominal expiry date until they are terminated or replaced.

It is unlawful to engage or threaten to engage in any action with the intention of coercing a person to, or not to, make a collective agreement, or to approve or vary or terminate such an agreement. However, since 1993 the law has permitted and accepted that coercion in the form of industrial action may occur when agreements are being negotiated. To that end, industrial action by employers, employees and unions can be permitted and protected by the WRA if it is applied towards the making and supporting of claims for a new agreement. Therefore, it is not unlawful to engage in protected industrial action. However, industrial action will only be protected if the procedures for protected industrial action in the WRA are complied with (see: Part 9 of the WRA). (Also see: "Industrial action", below.)