Variation can be a Ship of Theseus (or, depending on your frame of reference, Trigger s Broom) problem – how far can the parties vary their contract before it ceases to be the same contract? To obtain Commission approval for an amendment to the enterprise agreement, a person covered by the agreement must submit an application for an F23 form available on our form page. In the event of a dispute over whether the parties have entered into a valid agreement to renew the contract, the Tribunal will rule on the issue on the relevant facts, taking into account the usual rules of interpretation of the contract. The deadline for access to an agreement is the deadline that expires immediately before the start of the voting process. During the access period, staff must have access to a copy of a proposal to amend an enterprise agreement. Workers must be informed of the voting procedures for the amendment at the beginning of the access period. This distinction may be important – if the amended agreement departs substantially from the original contract, it may be considered by the Tribunal as a new agreement, so that the original contract is cancelled. This could have unintended consequences if a party wishes to invoke a provision of the original contract that may not have been included in the new agreement. When the parties amend a contract in writing, it is generally easy for a party asserting its rights to prove the agreed amendment by referring to a variation agreement or the exchange of emails. Similarly, a party relying on an oral amendment should be able to determine how the amendment agreement was concluded. However, if one party says that a contract was different by moderate behaviour, things can be a little more complex. This is the most commonly accepted way of effectively changing the terms of a commercial contract. The original contract is often a term (known as “no oral amendment”) that explicitly states that the only possibility of amending the contract is written with the agreement of both parties.
Employers and their employees may agree to amend an enterprise agreement, but such an amendment has no effect unless it is approved by the Fair Work Commission. Any party to an enterprise agreement, a transitional instrument based on agreements or a state instrument of Division 2B may ask the Commission to amend its agreement in order to remove any ambiguity or uncertainty.