Employment Law - Workplace Agreements
May 2014
How are your employees employed?
There are a number of ways that an employer can govern the terms of its employment with its employees. An employer may utilise individual employment contracts with its employees which may or may not be affected by the conditions imposed by a modern award. Within the tourism industry, the overwhelming majority of employees are covered by the Hospitality Industry (General) Award 2010 which sets minimum standards for rates of pay, hours of work, leave entitlements and procedures for termination.
Increasingly however, many employers are electing to enter into Workplace Agreements (also known as Enterprise Agreements or “AWA’s”) with their employees. A Workplace Agreement is a collective agreement negotiated between the employer and its employees regarding the terms and conditions of employment. A Workplace Agreement may take three forms:
What terms may, must and not be in a Workplace Agreement
At the eventual outcome of any negotiation, Workplace Agreement must ensure that all employees are afforded conditions which are “better off overall” when compared to the relevant modern award and the National Employment Standards. Legislation also covers certain terms which may be included in a Workplace Agreement as well as terms which must be and must not be included. The following table provides a brief (but non-exhaustive) summary of these terms:
There are a number of ways that an employer can govern the terms of its employment with its employees. An employer may utilise individual employment contracts with its employees which may or may not be affected by the conditions imposed by a modern award. Within the tourism industry, the overwhelming majority of employees are covered by the Hospitality Industry (General) Award 2010 which sets minimum standards for rates of pay, hours of work, leave entitlements and procedures for termination.
Increasingly however, many employers are electing to enter into Workplace Agreements (also known as Enterprise Agreements or “AWA’s”) with their employees. A Workplace Agreement is a collective agreement negotiated between the employer and its employees regarding the terms and conditions of employment. A Workplace Agreement may take three forms:
- Single Enterprise Agreements – this involves an existing business (which may consist one or more employers) and its employees.
- Multi Enterprise Agreements – these cover situations where two different entities may have an overlap in the group of people they employ.
- Greenfields Agreements –these cover new businesses yet to commence operation.
What terms may, must and not be in a Workplace Agreement
At the eventual outcome of any negotiation, Workplace Agreement must ensure that all employees are afforded conditions which are “better off overall” when compared to the relevant modern award and the National Employment Standards. Legislation also covers certain terms which may be included in a Workplace Agreement as well as terms which must be and must not be included. The following table provides a brief (but non-exhaustive) summary of these terms:
|
May Be Included
· Rates of pay · Penalty rates and overtime · Allowances · Leave entitlements · Authorisation for employee wage deductions |
Must Be Included
· A dispute resolution clause allowing for referral to an independent person or the Fair Work Commission · Ability for employees to appoint representatives · Flexibility term allowing one employee to agree to an individual variation of the Workplace Agreement · A consultation term requiring employers to consult with employees on any major changes to the business · A nominal expiry date (usually within 4 years) · Clear terms explaining who is and who is not covered by the Workplace Agreement |
Must Not Be Included
· Discriminatory terms · Terms which breach the General Protections Provisions of the Fair Work Act 2009 · Terms requiring bargaining services fees to be paid · Terms inconsistent with the Unfair Dismissal Provisions in the Fair Work Act · Terms relating to an employer’s right of entry · Terms which modify the law relating to industrial action · Terms requiring superannuation funds to be deposited in a specific fund (exceptions apply for MySuper products amongst others) |
What processes need to be followed?
With respect to initiating a Workplace Agreement, there are a number of formal steps which are involved including the provision of notice to employees and informing them of their rights to appoint a representative to conduct the bargaining on their behalf. Where the employees are represented by a Union, that entity becomes their default representative unless the employees elect otherwise.
As for the actual bargaining process itself, both employers and employees (and their representatives) have a duty to act in good faith which within this context may be summarised as follows:
(a) recognising the validity of any representatives (where relevant);
(b) attending and participating in meetings at reasonable times;
(c) disclosing all relevant information in a timely manner (excluding anything which is confidential or commercially sensitive);
(d) giving genuine consideration to any proposals put forward by the other side and giving appropriate reasons for any response given to those proposals;
(e) refraining from any conduct which undermines an employee’s freedom of association or collective bargaining.
Once a Workplace Agreement has reached a final negotiated form, the employees who will be subject to it must then vote to bring it into effect.
Once the Agreement comes into effect, it must then be lodged with the Fair Work Commission for approval. Please note that the Commission is vested with the power to amend any agreement which it deems as being non-compliant with the National Employment Standards or leaves the employees worse off under any relevant modern award. This procedure is of course open to submissions by the representatives of the employer and the employee.
Should you require any assistance with respect to the drafting and negotiation of a Workplace Agreement please contact Bradfield & Scott Lawyers.
This article is not intended to be anything other than thought provoking and is intentionally not a comprehensive treatise. We welcome feedback and are happy to talk to anyone in the tourism industry who might wish to seek some elaboration on anything raised in this article.
Mat Henderson
Lawyer
Bradfield & Scott Lawyers
Level 1, 175 Macquarie Street
Sydney NSW 2000
Telephone: 9233 7299
Email: mhenderson@bradscott.com.au
With respect to initiating a Workplace Agreement, there are a number of formal steps which are involved including the provision of notice to employees and informing them of their rights to appoint a representative to conduct the bargaining on their behalf. Where the employees are represented by a Union, that entity becomes their default representative unless the employees elect otherwise.
As for the actual bargaining process itself, both employers and employees (and their representatives) have a duty to act in good faith which within this context may be summarised as follows:
(a) recognising the validity of any representatives (where relevant);
(b) attending and participating in meetings at reasonable times;
(c) disclosing all relevant information in a timely manner (excluding anything which is confidential or commercially sensitive);
(d) giving genuine consideration to any proposals put forward by the other side and giving appropriate reasons for any response given to those proposals;
(e) refraining from any conduct which undermines an employee’s freedom of association or collective bargaining.
Once a Workplace Agreement has reached a final negotiated form, the employees who will be subject to it must then vote to bring it into effect.
Once the Agreement comes into effect, it must then be lodged with the Fair Work Commission for approval. Please note that the Commission is vested with the power to amend any agreement which it deems as being non-compliant with the National Employment Standards or leaves the employees worse off under any relevant modern award. This procedure is of course open to submissions by the representatives of the employer and the employee.
Should you require any assistance with respect to the drafting and negotiation of a Workplace Agreement please contact Bradfield & Scott Lawyers.
This article is not intended to be anything other than thought provoking and is intentionally not a comprehensive treatise. We welcome feedback and are happy to talk to anyone in the tourism industry who might wish to seek some elaboration on anything raised in this article.
Mat Henderson
Lawyer
Bradfield & Scott Lawyers
Level 1, 175 Macquarie Street
Sydney NSW 2000
Telephone: 9233 7299
Email: mhenderson@bradscott.com.au
