When your business moves into enterprise bargaining, you quickly encounter the concept of a bargaining representative. It sounds procedural, but who sits at the bargaining table — and who is authorised to speak and commit — has real consequences for how the process runs and whether the Fair Work Commission (FWC) will approve the agreement at the end.
This article explains what a bargaining representative is under the Fair Work Act 2009 (Cth), who can be one, how they are appointed, what the law requires of them, and where the process typically goes wrong for small and medium businesses.
What a bargaining representative is
A bargaining representative is a person or organisation that is legally entitled to represent an employer or an employee during bargaining for an enterprise agreement. The term is defined and governed by s 176 of the Fair Work Act 2009 (Cth).
There are bargaining representatives on each side of the table:
- Employer side: the business owner, a director, a manager with delegated authority, a lawyer, or any other person the employer nominates in writing to bargain on its behalf.
- Employee side: employees can bargain for themselves (the default position for most employees), or they can appoint someone else — another employee, a union, a family member, or any other person — by written appointment.
The key distinction to keep in mind is between who is covered by the agreement and who bargains for it. The employees who will be bound by the enterprise agreement are not necessarily the same people who represent employees at the table. A union, for instance, may bargain on behalf of a much larger group than its paid members if it has the standing to do so.
How bargaining representatives are appointed — and the NERR
Appointment works differently depending on which side of the table you are on, and whether a union is involved.
For employers, appointment is straightforward: you can bargain yourself, or you can nominate someone else in writing. If you use an external adviser — a lawyer or an industrial relations consultant — you should document the scope of their authority clearly. Make explicit what they can agree to without coming back for sign-off, and make sure your internal decision-makers are available when key terms are being settled. For companies with multiple directors, your governance documents should be consistent with who has authority to commit the business.
For employees, the starting point is the Notice of Employee Representational Rights (NERR). Under s 173 of the Fair Work Act 2009 (Cth), an employer who has initiated bargaining for a single-enterprise agreement must give each employee who will be covered by the proposed agreement a NERR within 14 days of the notification time — the point at which bargaining formally commences. The FWC publishes a prescribed form for the NERR; you must not alter its content beyond inserting your business name and the required particulars. If you miss the 14-day window or modify the form, the FWC cannot approve the agreement.
Once employees receive the NERR, they can appoint a bargaining representative in writing. If they do not make an appointment, and they are a member of a union that is entitled to represent their industrial interests in relation to the work covered by the agreement, that union automatically becomes their bargaining representative.
As an employer you should ask, early in the process:
- Which employees does this person claim to represent?
- Is there a written appointment, or are they relying on union membership?
- Is the appointment current, or has it been revoked?
Keeping a simple register of bargaining representatives and the employee groups they cover is low-effort and pays off when disputes arise.
What bargaining representatives do — and what they cannot do
A bargaining representative's function is to act on behalf of their party throughout negotiations. In practice that means making and responding to proposals, attending bargaining meetings, communicating positions, and documenting agreed and disputed terms.
What they cannot do is override the law. A bargaining representative cannot agree to terms that undermine the National Employment Standards, fall below applicable modern award minimums, or are otherwise unlawful. Having a representative does not transfer your legal obligations as an employer: even if a law firm or consultant bargains on your behalf, the agreement your business signs must be workable, compliant, and something you can actually operate under.
This last point deserves emphasis for smaller businesses. Some enterprise agreement clauses look acceptable in the abstract but create serious operational difficulty in practice. Rostering rules, minimum engagement periods, overtime triggers, and consultation requirements can lock in constraints that are manageable for a large enterprise but punishing for a business of 15 or 30 people. Test every proposed clause against real workflows before agreeing to it.
Good faith bargaining
Section 228 of the Fair Work Act 2009 (Cth) sets out the good faith bargaining requirements that every bargaining representative must meet. They are:
- attending, and genuinely participating in, meetings at reasonable times;
- disclosing relevant information in a timely manner (other than confidential or commercially sensitive information);
- responding to proposals from other bargaining representatives in a timely manner;
- giving genuine consideration to proposals and providing reasons for any response;
- refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; and
- recognising and bargaining with the other bargaining representatives.
Critically, good faith bargaining does not require you to make concessions or reach agreement. You can maintain a firm position on any term provided you are genuinely engaging with the process. The FWC assesses good faith objectively — it is about how you are participating, not about whether the other side is satisfied with your offers.
If a party is not bargaining in good faith, the other side can apply to the FWC for a bargaining order, which can require that party to comply with the good faith requirements. The FWC also has jurisdiction to make intractable bargaining declarations where negotiations have genuinely broken down and the parties cannot bridge the gap.
Where businesses typically go wrong
Unclear authority at the outset. When it is not clear who has authority to agree on behalf of the employer — especially in a company with shared ownership or management — the process stalls. Resolve internally who has the authority to commit the business to wages, allowances, and key operational terms before bargaining starts.
Treating the NERR as a formality. The 14-day window runs from the notification time and cannot be extended. Businesses that delay issuing the NERR, or that alter the prescribed form, create an approval problem that cannot be fixed later. Issue the NERR immediately after bargaining is initiated and keep evidence of delivery to each covered employee.
Agreeing to terms without testing them operationally. Clause-by-clause review in a meeting room is different from running the clause against real scenarios. A consultation requirement that seems reasonable in negotiation can slow down day-to-day decisions significantly in practice. Involve your operations managers, not just HR or legal, when reviewing proposed terms.
Neglecting document alignment after the agreement. Once an enterprise agreement is approved, it interacts with employment contracts, workplace policies, and rostering arrangements. If those documents are not updated to reflect the new terms, you create inconsistencies that generate disputes and grievances. Plan for a post-approval review of your employment documentation as part of the bargaining project.
Employee communications during bargaining. Communications sent to employees during the process are not legally neutral. Statements that could be read as pressure, inducement, or misrepresentation can give rise to claims of breach of the good faith bargaining requirements or general protections concerns. Decide who is authorised to communicate on behalf of the business during bargaining and keep messaging factual and consistent.
How Artificer Legal can assist
Enterprise bargaining involves a sequence of procedural obligations — NERR, bargaining meetings, document exchange, FWC approval — and a parallel set of substantive decisions about what terms your business can actually live with. Getting either side wrong is costly.
A lawyer advising on enterprise bargaining will typically:
- Help you establish whether you need to bargain at all, or whether a modern award or individual contracts are a better fit for your workforce;
- Advise on initiating bargaining, issuing the NERR correctly, and establishing a bargaining timetable;
- Review any claims from employee bargaining representatives and flag terms that are legally questionable or operationally risky;
- Manage the communications framework during bargaining to minimise general protections exposure;
- Prepare or review the draft agreement and manage the FWC approval application; and
- Align your employment contracts and policies to the approved agreement once it takes effect.
If you are considering enterprise bargaining or have already started the process, contact Artificer Legal to talk through your position.
The one thing worth remembering
Good faith bargaining does not mean agreeing to everything — it means engaging genuinely with the process. Businesses that show up, keep records, respond on time, and maintain clear internal authority protect themselves from bargaining orders and agreement-approval problems, regardless of where negotiations ultimately land.
Key points:
- A bargaining representative is a person or organisation legally entitled to represent an employer or employees during enterprise bargaining under s 176 of the Fair Work Act 2009 (Cth).
- Employers must issue the NERR to each covered employee within 14 days of the notification time; missing this deadline or altering the prescribed form prevents FWC approval.
- Union members who do not appoint another representative are automatically represented by their union.
- Section 228 of the Fair Work Act 2009 (Cth) sets out the good faith bargaining requirements; they require genuine engagement, not agreement or concessions.
- Common employer errors include unclear internal authority, a defective NERR, agreeing to unworkable operational clauses, and failing to update employment documents after the agreement is made.