Think Your Club’s Enterprise Agreement Has Expired? Think Again!

However, there is often confusion about what happens when an enterprise agreement reaches its nominal expiry date. In short, expiration does not mean the agreement no longer applies.

This article outlines how expired enterprise agreements continue to operate under the Fair Work Act 2009 (Cth) (the Act), what this means for clubs and their employees, and the options available if an agreement is no longer fit for purpose.

The Legal Framework

Enterprise agreements are legally binding agreements made between employers and employees (or their representatives) under the Act. 

These agreements set out the terms and conditions of employment, including wages, hours of work, leave entitlements and other workplace matters.

While every enterprise agreement has a nominal expiry date, that date is often misunderstood. Importantly, the expiry date does not bring the agreement to an end. 

Section 54 of the Act provides that an enterprise agreement continues to apply to the employer and employees it covers until it is replaced or formally terminated.

What Happens After Expiry

Once an agreement passes its nominal expiry date, it continues to operate in full. The terms and conditions remain legally enforceable and continue to regulate the employment relationship. 

There is also an obligation to ensure that your ordinarily hourly rates do not fall below the minimum rates set out in the Registered and Licensed Clubs Award 2020. This mechanism protects employees from having their conditions reduced or altered without proper process. 

Employers cannot unilaterally change terms, introduce new arrangements or default to the relevant modern award simply because an agreement has expired.

Termination of Expired Enterprise Agreements

An expired enterprise agreement only ceases to operate if it is formally terminated or replaced. The Act provides two pathways for termination:

By agreement: Under section 219 of the Act, an enterprise agreement can be terminated by mutual agreement between the employer and the employees covered by the agreement. This requires a majority of employees to vote in favour of the termination, and the Fair Work Commission (the FWC) must approve the termination.

By application to the Fair Work Commission: Under section 225 of the Act, an employer, employee or employee organisation covered by the agreement may apply to the FWC to terminate the agreement. The FWC must be satisfied that it is not contrary to the public interest to terminate the agreement and that the termination is appropriate in the circumstances.

Until one of these processes is completed, the expired enterprise agreement remains in force.

You Cannot Simply Revert to the Modern Award

A common mistake is assuming that employees can be “moved onto” the Registered and Licensed Clubs Award 2020 once an enterprise agreement expires. This is incorrect. 

The Act makes it clear that an expired agreement continues to apply, and attempting to unilaterally impose award conditions may expose an employer to underpayment claims and penalties.

What Clubs Should Do Next

If your club is operating under an enterprise agreement that no longer reflects its operational or financial needs, doing nothing is not a strategy. Expired agreements can continue for years unless action is taken.

The ClubsNSW Workplace Relations Team can assist in reviewing your current agreement and discussing options, including termination, replacement or alternative approaches that align with your business objectives while remaining compliant with the law.

For further information or assistance in relation to your club’s enterprise agreement or any employment issues or queries, member clubs can contact the Workplace Relations Team via ClubAssist on 1300 730 001.