Law Institute of Victoria Accredited Specialist

For expert legal advice, give us a call on
03 9646 0344


creation-of-a-workplace-agreement1

WORKPLACE AGREEMENTS IN MELBOURNE

grey underscore

Australian Workplace Agreements

CREATING A WORKPLACE AGREEMENT

There are a number of different types of workplace agreements. These include:  

AUSTRALIAN WORKPLACE AGREEMENT (AWA)

An agreement in writing with a person whose employment is subject to the agreement. May be made before the commencement of employment (s326)  

EMPLOYEE COLLECTIVE AGREEMENT

In writing with persons employed at the time in a single business of the employer whose employment is subject to the agreement (s327). (A single business is defined in s322 as a business, project or undertaking carried on by an employer including the activities carried on by the Commonwealth, States or Territories)  

UNION COLLECTIVE AGREEMENT

An agreement in writing with one or more organisations of employees so long as the organisation has at least one member in a single business of the employer that will be subject to the agreement, and the organisation is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement (s328).


UNION GREENFIELDS AGREEMENT

Agreement in writing with one or more organisations of employees providing the agreement relates to a new business, the agreement is made before the employment of people who will be subject to the agreement and who will be necessary for the normal operation of the business. The organisation must be entitled to represent the industrial interests of one or more of the people whose employment is likely to be affected by the agreement (s329).  

EMPLOYER GREENFIELDS AGREEMENT

An agreement in writing relating to a new business and the agreement is made before the employment of anyone who will be necessary for the normal operation of the business and whose employment is subject to the agreement (s330).  

MULTIPLE BUSINESS AGREEMENTS

Agreements that relate to one or more single businesses or one or more parts of single businesses that would be a collective agreement of any sort of agreement listed above except the AWA but for the fact that they relate to one or more single businesses (s331).  

AWA

An employee may appoint a person to be their bargaining agent in relation to the making, varying, or termination of an AWA. This must be made in writing, and neither party may refuse to recognise a bargaining agent appointed by the other party (s334).

If an employer intends to have a workplace agreement approved they must take all reasonable steps to give all eligible employees a copy of the agreement or give them access to the agreement at least 7 days before the agreement is approved (s337(1)). The employer must also take all reasonable steps to provide eligible employees with an information statement at least 7 days before the agreement is approved (s337(2)). The information statement is attached.

If a workplace agreement incorporates terms from an industrial instrument as under s355 (incorporation by reference of terms from an industrial instrument), the employee does not have access to the agreement unless they have access to the industrial instrument (s337 (6)).

An AWA is approved if it is signed and dated by both the employee and the employer. These signatures must also be witnessed. If the employee is under 18 then it must also be signed by an appropriate person on behalf of the employee, with that signature witnessed (s340 (1)).

AWA’s should be lodged with the Employment Advocate within 14 days of approval (s342 (1)). A copy of the AWA must be provided when lodging, and this should be accompanied by an Employer Declaration (attached) (s344 (1)).

A workplace agreement comes into operation on the day that it is lodged (s347 (1)). It ceases to be in operation if it is terminated in accordance with Part 8, Division 9 of the Act, if it is replaced by another AWA or if the Court declares it void (s347(4)).

An award has no effect in relation to an employee while a workplace agreement operates in relation to an employee (s349). The workplace agreement binds the employer and all persons whose employment is subject to the agreement (s351).

CONTENT OF WORKPLACE AGREEMENTS

A workplace agreement must include:  

NOMINAL EXPIRY DATE

A date may be specified as the nominal expiry date as long as it is no later than the fifth anniversary of the lodgement of the agreement, otherwise, the nominal expiry date will be deemed the fifth anniversary on which the agreement was lodged (s352).  

DISPUTE SETTLEMENT PROCEDURE

If the agreement does not include a dispute settlement procedure then it will be taken to include the model dispute resolution process in Part 13 (s353).  

PROTECTED AWARD CONDITIONS

If there are protected award conditions that would apply in relation to the employee then these are taken to be included in the workplace agreement subject to any terms of the workplace agreement that expressly exclude or modify them (s354(2)). These protected award conditions include (s354 (4)):

a)    Rest breaks

b)    Incentive based payments and bonuses

c)    Annual leave loading

d)    Public holidays

e)    Monetary allowances

f)    Overtime and shift work loading

g)    Penalty rates

h)    Outworker conditions

i)    Prohibited Content

The Regulations outline a number of matters that are prohibited content (as provided for by s356). These include conditions relating to:

a)    Encouragement/discouragement of union membership

b)    Allowing industrial action

c)    Trade union training leave

d)    Renegotiation of a workplace agreement

e)    Union involvement in dispute resolution

f)    Workplace right of entry for union officials

g)    Limits on use of labour hire workers and independent contractors

h)    Forgoing of annual leave other than in accordance with the Act

i)    Disclosure of details of the workplace agreement

j)    Discriminatory terms

k)    Matters that do not pertain to the employment relationship

Prohibited content in a workplace agreement is void to the extent that it contains prohibited content (s358). Division 8 sets out the procedure for varying a workplace agreement and Division 9 sets out the procedure for terminating a workplace agreement.  

NEED MORE INFORMATION

Behan Legal advises and assists on these important issues. For an appointment, call 03 9646 0344 .

Share by: