Questions & Answers - Enterprise agreements and collective bargaining

Question:

Is there a specified form that is required to be used to meet the employer's obligation to "take all reasonable steps to notify each employee of their right to be represented during bargaining." If so, can you point me in the right direction? If not, would noticeboard notices meet the employer's obligation?

Answer:

We suggest you complete the form below (it has been prepared on the assumption that none of the employees to be covered by the proposed agreement are party to an AWA or ITEA). You only need to take reasonable steps to give this notice to the employees concerned. It would be sufficient to e-mail it or post the notice to a forum or site that is known by and accessible by relevant employees. We guess the notice board would be sufficient if you were satisfied that most employees would look at it.

Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174 (6)

[Company name] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.

If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Australia about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Australia Infoline on 1300 799 675.

Question:

Where a collective agreement is inconsistent with the provisions under the new Fair Work Act, when does the Fair Work Act take precedent? As at 01 July 2009 / 01 January 2010 or upon renegotiation of the collective agreement?

Are there any 'grandfathering' or sunset provisions to be aware of?

Answer:

There are many complicated aspects of the transition to the Fair Work Act. The Fair Work Act will apply to new agreements or variations lodged on or after 1 July 2009. Pre-reform certified agreements (those made prior to Work Choices) can be varied under the Workplace Relations Act for the remainder of this year. ITEAs cannot be made after 30 December 2009. No term of a statutory agreement, regardless of when they are made, can undercut the National Employment Standards when the NES commence on 1 January 2010. NAPSAs and Division 3 certified agreements will sunset in 2013.

Question:

We are negotiating an agreement with employees who are employed by a subsidiary company of our bigger company. The parent company uses union enterprise agreements however the employees in the subsidiary company are not a unionised workforce. They have been told they can nominate a bargaining representative and have elected not to do so because we are bargaining directly with them. Are we obligated to tell the relevant union that we are bargaining, even though the employees do not want them involved? If not, do we have to specify union involvement at all in the agreement as part of the permitted matters, dispute resolution clause etc?

Answer:

No, you only need to recognise the union in this process if an employee appoints the union as their bargaining representative, or a union member does nothing after receiving the notice of representational rights, in which case the union will become the bargaining representative by default.

Question:

1. It appears that a couple of our admin staff did not have their ITEAs lodged successfully with the Workplace Authority. All employees commenced with our firm before 1 July 2009. I understand this means that the C&A Award is actually applicable to them rather than the conditions of the ITEA unless we set up an Enterprise Agreement. Is this correct?
2. Until we set up an Enterprise Agreement and have it approved, does this mean that we must pay entitlements under the Award such as leave loading? If so, does this extend from when they started their employment with us (given the ITEA is missing)?
3. Also does the fact that the employees are paid above Award make any difference to our situation or their entitlements under the Award?

Answer:

1. Yes, but you can still make ITEAs until the end of this year.
2. Yes.
3. If you had something in the employment contract or ITEA along the lines of “Your hourly rate includes payment for all loadings, penalties and allowances that you might otherwise be entitled to”, then you may be able to rely on that over award payment, if it is enough after working out actual entitlements based on time and wage records, without having making back pay.

Question:

Can an employer refuse an employee nominated bargaining agent (without formally seeking a bargaining order) for reasons such as, that there may be too many nominations and the committee would be too large, or costly to manage?

Answer:

No, however if it is not practical to sit down with all bargaining agents you would not be breaching your obligations to negotiate with them in good faith. One option is to seek the endorsement of FWA to an approach for dealing with bargaining agents (e.g. ask groups of bargaining agents in distinct parts of your business to nominate one representative to a steering committee).

Question:

I have looked at the modern awards and do not seem to be able to find which award would cover the industry that i work in – retirement villages – any ideas? There are approximately 30 staff employed under common law contracts - do all of these staff (gardening/catering/cleaning/carers) have to be attached to a modern award or can there be one generic agreement struck that is a catch all employment contract that incorporates all of the minimum conditions required?

Answer:

A retirement village may come under the Aged Care Modern Award, which covers work performed in a retirement village including gardening, food services, cleaning, laundry services, personal carers and clerical employees (e.g. receptionists). You can reach a collective agreement with your employees, which covers all categories of employment. The agreement would be based on a Modern Award or if there is no relevant Modern Award, the minimum standards (currently the Fair Pay and Conditions Standard, and as of 1 January 2010 the NES). There are instructions outlining how to make and lodge a collective agreement on the fairwork.gov.au website and on this website.

Question:

Evidence or examples of Serious Breach Declaration?

Answer:

A serious breach declaration is a declaration made by Fair Work Australia on the application of a bargaining representative for a proposed enterprise agreement.

The Explanatory Memorandum to the Fair Work Act states that it is intended that a serious breach declaration would be made rarely and only as a last resort in the event that a bargaining representative has behaved in a manner that shows disregard for the bargaining obligations and that significantly undermines bargaining and where the framework of good faith bargaining orders has been demonstrated to have failed to bring about good faith bargaining.

The consequence of a serious breach declaration being made in relation to the agreement is that Fair Work Australia may, in certain circumstances, make a bargaining related workplace determination in relation to the agreement under section 269 of the Fair Work Act.

Under section 253 of the Fair Work Act, Fair Work Australia may make a serious breach declaration if it is satisfied that:

• a bargaining representative has contravened one or more bargaining orders in relation to the agreement;
• the contravention(s) is serious and sustained and has significantly undermined bargaining for the agreement;
• the other bargaining representatives have exhausted all other reasonable alternatives to reach agreement on the terms for the agreement;
• agreement on the terms for the agreement will not be reached in the foreseeable future; and
• it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

Question:

Is there any benefit to lodging an EA prior to the Modern Awards coming into effect on 1/1/10 (i.e. the EA will replace any relevant Awards)?

Answer:

It may be beneficial if you do not wish for the provisions of the modern award to apply to relevant staff. If the modern awards reflect your current employment arrangements or are less generous, there would be limited merit in lodging an EA before 1 January 2010. If this is not the case or if you needed greater flexibility in relation to matters such as hours of work and overtime as than provided for in any relevant modern award, it would be worthwhile considering lodging an enterprise agreement (although, there is now limited time to make an enterprise agreement before the end of the year).