Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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Hiring staff in Australia means engaging with the Fair Work system - and two terms you’ll hear early and often are “modern awards” and “enterprise agreements”. Both set minimum entitlements, but they work differently and can change what you pay, how you roster, and the day‑to‑day rules you must follow.
If you’re a business owner, knowing when an award applies, whether an enterprise agreement might make sense, and how both interact with the National Employment Standards (NES) is essential. Getting this right helps you stay compliant, manage costs, and build a sustainable team.
In this guide, we break down modern awards and enterprise agreements in plain English, compare their key differences, and step you through how enterprise bargaining works in Australia.
What Are Modern Awards And Enterprise Agreements?
Modern awards are industry- and occupation-based instruments that sit on top of the National Employment Standards (NES). They set minimum pay rates, penalty rates, allowances, overtime, breaks, rostering rules and other conditions for specific jobs. For example, retailers commonly look to the General Retail Industry Award for base rates, classifications and weekend penalties for shop staff.
Most Australian employees are covered by a modern award unless they’re award‑free (for example, some high‑income managerial roles) or covered by an approved enterprise agreement.
Enterprise agreements (often called EAs) are collective agreements made at the enterprise level between an employer (or multiple employers) and their employees. Once approved by the Fair Work Commission, an EA becomes the primary instrument that sets terms and conditions for the covered employees. It must pass the “better off overall test” (BOOT) - meaning every employee who will be covered must be better off overall under the EA than under the relevant modern award.
Neither an award nor an EA can undercut the National Employment Standards. Think of the NES as the non‑negotiable safety net across Australia (e.g. annual leave, personal/carer’s leave, parental leave, maximum weekly hours, public holidays, notice and redundancy).
Modern Awards Vs Enterprise Agreements: Key Differences
At a high level, awards are default, industry‑wide minimums. Enterprise agreements are tailored, workplace‑specific terms that - once approved - replace the award for covered employees. Here’s how they differ in practice.
Scope And Coverage
- Modern awards: Apply broadly by industry or occupation. If a role fits within a classification, the award usually covers that employee.
- Enterprise agreements: Apply only to the enterprise(s), roles and employees identified in the agreement. Different worksites within a group can have different EAs.
Flexibility And Customisation
- Modern awards: Prescriptive. You must follow the classification structure, minimum rates, penalty rates and rules around breaks and overtime.
- Enterprise agreements: More flexible. You can tailor classifications, rostering, allowances and loadings to your operations, provided employees are better off overall than under the award.
Process To Implement
- Modern awards: No process - they apply by law if your business and roles fall within them.
- Enterprise agreements: Formal bargaining, an employee vote and Fair Work Commission approval. The Commission checks the BOOT and that procedural requirements were followed.
Administration And Compliance
- Modern awards: Ongoing compliance means correctly classifying roles, applying annual wage updates, and following rules around rostering, breaks and overtime.
- Enterprise agreements: You’ll administer the agreed terms, monitor nominal expiry dates, and ensure the EA continues to deliver BOOT‑compliant outcomes as roles or patterns of work change. Many businesses also issue a role‑specific Employment Contract alongside the EA to capture duties, location, confidentiality and IP.
How Do Awards And EAs Interact?
If there is no enterprise agreement in place, the relevant modern award applies by default (unless the employee is genuinely award‑free).
Once an enterprise agreement is approved and covers an employee, it generally displaces the award for that employee. The award doesn’t operate “alongside” the EA, unless the EA expressly incorporates an award term by reference. The NES still applies in all cases.
When Should You Consider An Enterprise Agreement?
An enterprise agreement can be a strategic tool for growing businesses that need flexibility and certainty while maintaining competitive conditions for staff. It may be worth considering if you:
- Operate across multiple sites or states and want a single, tailored set of rules and classifications.
- Have unique rostering or operational demands (e.g. extended trading, seasonal peaks) and want to package arrangements (such as simplified classifications, annualised salaries or tailored penalty structures) - while ensuring employees are better off overall.
- Want to streamline payroll compliance by replacing multiple awards with one enterprise‑specific framework.
- Are facing bargaining claims from employees or unions and prefer a negotiated, long‑term outcome.
On the other hand, if you’re a small team with straightforward award coverage, the time and cost to make an EA may outweigh the benefits. In those cases, strong award compliance processes are key - for example, periodic classification reviews or an Award Compliance audit to confirm you’re paying the right rates and applying penalties correctly.
How Do You Make An Enterprise Agreement? (Step‑By‑Step)
Enterprise bargaining is a formal process under the Fair Work Act. Here’s the typical journey from idea to approval.
1) Decide The Scope And Prepare To Bargain
Identify which employees and roles you want covered, and clarify your objectives (e.g. rostering flexibility, allowances, classifications). Keep the BOOT front of mind - you’ll need evidence that each employee would be better off overall than under the award.
It’s common to map current award entitlements against proposed EA terms: base pay, penalties, overtime, allowances, breaks and ordinary hours.
2) Initiate Bargaining And Share Required Information
Comply with procedural steps such as issuing a Notice of Employee Representational Rights (NERR). Employees may appoint bargaining representatives (including unions). Keep detailed records of meetings and proposals.
3) Negotiate The Terms
Work through key clauses: coverage, classifications, rates, ordinary hours, overtime, breaks, leave arrangements, dispute resolution, consultation and flexibility provisions.
For example, you might propose a simplified roster pattern with clear break rules. Whatever you propose, ensure it respects NES minima and aligns with practical break entitlements and rostering standards under the corresponding award you’re using for the BOOT comparison.
4) Explain The Agreement And Conduct The Vote
Employees must have a genuine opportunity to understand the EA before voting. Provide access to the final draft and explain the effect of the terms. Then conduct the vote in accordance with Fair Work requirements.
5) Apply To The Fair Work Commission For Approval
If the vote passes, lodge your application with supporting documents (including a BOOT assessment). The Commission assesses whether the agreement genuinely covers the intended employees, passes the BOOT and meets procedural rules. If satisfied, it approves the EA and sets a commencement date.
6) Implement And Monitor
Update payroll, rosters and HR processes to reflect the EA. Train managers, communicate changes clearly, and schedule periodic checks to make sure the EA continues to deliver BOOT‑compliant outcomes - especially if you alter hours of work, introduce allowances or restructure roles.
What Still Applies Under An EA? NES And Other Laws
Even under an enterprise agreement, you must comply with the National Employment Standards. These are the baseline entitlements that cannot be undercut, including maximum weekly hours, various leave entitlements, public holidays, notice of termination and redundancy pay.
Many EAs mirror award concepts (penalty rates, overtime triggers, allowances and breaks) but package them differently - for example, via annualised salary arrangements. Good documentation and clear payroll rules help you avoid underpayments.
Beyond the instrument itself, make sure you’re on top of wider workplace laws and practical documents, such as:
- Employment Contracts: Issue a role‑specific Employment Contract to capture duties, location, confidentiality and IP. The EA (or award) sets minimum pay and conditions.
- Hours And Breaks: Respect maximum weekly hours and rest breaks. Policies and rosters that reflect break entitlements reduce risk of non‑compliance.
- Investigations And Workplace Issues: If you need to remove an employee from the workplace during a misconduct investigation, consider suspension pending investigation where appropriate. This is different from a statutory stand down, which has limited grounds under the Fair Work Act.
- Record‑Keeping: Accurate time and wage records, classification notes, and evidence for any annualised salary set‑offs are vital and often decisive in audits.
If you’re unsure about any step - from the BOOT assessment to drafting coverage clauses - it’s wise to get early advice from employment lawyers so your process stays on track.
Common Compliance Risks (And How To Avoid Them)
Most underpayment issues don’t come from bad intent - they come from complexity. Here are frequent trouble spots and practical ways to stay on track.
Misclassification Under The Award Or EA
Placing someone in a lower classification than their duties require drags down base rates and alters overtime and penalty calculations. Cross‑check duties against the relevant classification descriptors and update as roles evolve.
Penalty Rates, Overtime And Annualised Salaries
Weekend and late‑night work is common in retail, hospitality and healthcare. Mistakes around penalty rates and overtime are a leading cause of underpayments. If you use annualised salaries to simplify payroll, build a defensible model that accounts for typical hours, then reconcile regularly against award‑equivalent entitlements. For clarity on loadings, see how penalty rates operate in Australia.
Rostering And Breaks
Compressed rosters, missed meal breaks or inadequate rest between shifts can breach minimum standards. Map roster templates to your EA or award rules, and configure your system to flag non‑compliant patterns automatically.
Outdated Pay Rates
Award rates typically update around 1 July. Missing an update can underpay your workforce. Assign responsibility for wage updates, implement them promptly, and document the changes.
Assuming “Award‑Free” Coverage
Many roles are award‑covered even if they feel “professional”. Treat award coverage as the default until confirmed otherwise. For genuinely award‑free roles (e.g. certain high‑income managerial positions), ensure robust contracts and policies are in place to set clear expectations and protect your business.
EA Administration Drift
As your business changes (new roles, hours or sites), an EA that once passed the BOOT might drift out of step for some employees. Schedule periodic BOOT reviews against current patterns, and address any gaps early - before they snowball into underpayments.
Key Takeaways
- Modern awards set industry and occupation minimums; enterprise agreements are tailored workplace instruments that, once approved, replace the award for covered employees.
- An enterprise agreement must pass the BOOT and can’t undercut the National Employment Standards - every covered employee must be better off overall than under the relevant award.
- EAs can deliver flexibility and certainty (especially across multiple sites), but they require formal bargaining, a valid vote, and Fair Work Commission approval.
- Whether you rely on an award or an EA, compliance turns on accurate classifications, correct penalty and overtime settings, compliant rostering and break rules, and up‑to‑date pay rates.
- Issue a clear Employment Contract for each role, maintain time and wage records, and reconcile any annualised salary arrangements regularly to avoid underpayments.
- For smaller teams, strong award processes (including optional Award Compliance reviews) can be more efficient than bargaining an EA; for complex operations, an EA may be worth the investment.
If you’d like a consultation on modern awards or enterprise agreements for your workplace, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.
