Iain Ross

1
Victorian Industrial Relations Society
SeminarAgreement Making Under Work Choices
March 2006

• Iain Ross
• W [phone]
• Mob [phone]

2
Workplace Agreements - overview

• Six types of Workplace Agreements
• Individual (AWAs)
• Employee Collective Agreements
• replace s170LK agreements
• employees can be represented by persons other
  than unions
• Unions cannot become party
• Union Collective Agreements
• Multiple Business Agreements

3
Workplace Agreements overview (cont.)

• Six types of Workplace Agreements
• Union greenfields agreements
• Employer greenfields agreements
• New definition of new business
• a new business, project or undertaking that
  the employer is
• proposing to establish

4
Agreement Processes Bargaining Agents

• An employee may appoint a person to act as a
  bargaining agent and to represent them in meeting
  and conferring with their employer about the
  making or variation of a collective agreement
• Employer must give the bargaining agent a
  reasonable opportunity to meet and confer with
  the employer about the agreement
• Opportunity must be provided within the 7 days
  prior to the date on which the agreement is to be
  approved

5
Content of Workplace Agreements

• Nominal expiry date 5th anniversary from
  lodgement where agreement silent
• Dispute settlement model clause where silent
• Protected award conditions where award
  conditions would have applied but for agreement,
  they apply unless expressly excluded or modified
  by the agreement
• Public holidays, rest breaks, incentive based
  payments and bonuses, annual leave loadings,
  allowances specified as allowable, penalty rates,
  shift/ overtime loadings, prescribed matters
• AFPCS basic periodic rates of pay average 38
  hour week4 weeks annual leave personal leave
  and parental leave

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Content of Workplace Agreements (cont.)

• Limitations on incorporation of terms
• Award or workplace agreement regulating
  employment in that work and which bound employer
  immediately before agreement made (once only)
• State awards and collective agreements cannot be
  incorporated and neither can collective
  unregistered agreements
• The term is void to the extent that it does the
  above

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Dispute Resolution

• Procedure for settling disputes about matters
  arising under the agreement
• Model Dispute Resolution Process (DRP) in all
  workplace agreements unless parties adopt
  different procedure in agreement
• 1st stage attempts to resolve dispute at
  workplace level
• next stage Alternative Dispute Resolution (ADR)
  by an agreed 3rd party
• could be the AIRC, or a private ADR provider
• if no agreement on 3rd party for ADR, party can
  apply to AIRC

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Disputes under the Model DRP

• AIRC can conduct ADR in disputes covered by Model
  DRP AIRC can refuse if
• no genuine effort to resolve matter
• no agreement on who should conduct ADR
• AIRCs role powers
• help parties resolve dispute, quickly
  informally
• conferences between parties
• make recommendations (if parties want)
• no arbitration/determination (unless all parties
  agree)
• no powers of compulsion, or to make orders (even
  if parties agree)
• AIRCs other powers (eg s44I) not applicable

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Disputes under workplace agreements

• AIRC can conduct ADR in disputes under workplace
  agreements if
• agreement dispute resolution procedure (DRP)
  confers power on AIRC ie the parties have not
  adopted the Model DRP
• all steps before referral to AIRC complete
• ie s170LW private arbitration
• but subject to significant limits
• - only those powers conferred in the agreement
• - no power to make orders

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Private arbitration ADR under workplace
agreements

• Representation
• Must allow where workplace agreement makes
  provision for such representation
• Otherwise to allow representation if appropriate
  to do so
• May set reasonable limits on the conduct of the
  representative
• Privacy
• Process to be conducted in private
• Limits on use of information and documents
• Inadmissibility of evidence other than by
  agreement or in circumstances specified by the
  Regulations
• No ADR to be conducted in relation to a dispute
  or matter subject to proceedings or findings
  under anti-discrimination law

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How will this affect existing agreements?

• Existing dispute resolution procedures in
  certified agreements are preserved
• Schedule 14, Part 2, Div 1 continues operation of
  s170LW re pre-reform agreements
• the Model DRP will only apply to new agreements
• unless the parties adopt a different procedure

12
Prohibited Content

• Work Choices booklet lists the following as
  prohibited content
• restrictions on employing labour hire workers/
  contractors
• Prohibitions on AWAs
• allowing for industrial action during the term of
  an agreement
• providing for trade union training leave,
  bargaining fees to trade unions or paid union
  meetings
• providing that any future agreement must be a
  union collective agreement
• mandating union involvement in dispute resolution
• providing a remedy for unfair dismissal, and
• other matters prescribed by regulations

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Prohibited Content (cont.)

• Maximum penalties of 33,000 for
• lodging an agreement containing prohibited
  content
• seeking to include a term containing prohibited
  content in a workplace agreement (or variation)
  during negotiations, reckless as to whether the
  term contained prohibited content
• making a misrepresentation re a workplace
  agreement (or variation) that a particular term
  does not contain prohibited content, reckless as
  to whether the term contains prohibited content
• involvement in the above contraventions - for
  example where a person has aided, abetted,
  counselled or procured the contravention
• has conspired with others to effect the
  contravention

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Agreement Processes Pre Lodgement (EBAs)

• At least 7 days before approval is sought the
  employer must provide the employees with
• A copy of the agreement (including incorporated
  instruments) or ready access to a copy, and
• An information statement
• Note
• Scope for employees to waive ready access
  requirement but not information statement
• If agreement content is changed it results in a
  separate agreement

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Agreement Processes Pre Lodgement (EBAs)
(cont.)

• Contents of Information Statement
• when and how employer will seek approval of
  agreement
• the effect of provisions relating to bargaining
  agents
• anything else as required by the Employment
  Advocate by notice in the Gazette
• Key changes
• 14 day pre approval period reduced to 7
• No longer a requirement on the employer to take
  reasonable steps to ensure the agreements are
  explained to all eligible employees

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Agreement Processes - Approval

• Approval
• AWAs when signed and dated by employee (or
  appropriate adult) and signature witnessed
• EBAs where a majority of persons who cast a
  valid vote approve the agreement (where by vote)
  or when majority decide they want to approve
• Key changes
• No requirement that the decision to approve be
  genuine

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Agreement Processes - Lodgement

• Lodgement of Workplace Agreements
• Occurs when declaration lodged together with copy
  agreement
• Multiple business agreements must first be
  authorised
• By employer
• Within 14 days of approval
• Receipt must be passed on to non-AWA employees
  within 21 days

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Agreement Processes Lodgement (cont.)

• Effect of Lodgement
• Workplace agreement comes into effect
• Even if requirements not complied with (unless
  court decides otherwise)
• except unauthorised multiple business agreements
• Key changes
• Previously EBAs lodged with Commission and AWAs
  with Employment Advocate
• Operative on lodging - No longer consider terms
  prior to approval/ certification (non compliance
  does not impact on agreement as whole)
• Different content requirements apply

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Content of Agreements - summary

• Key changes
• 5 year maximum nominal life of agreement
  (currently 3)
• Prohibited content rather than requirements for
  certification re discrimination/ matters
  pertaining
• Agreement will become operative even where non
  compliance cf prerequisites to certification
• Protected award conditions and AFPCS replaces
  the no disadvantage test
• No previous limitation on incorporation or
  referencing other industrial instruments or other
  terms
• A number of issues regarding interaction and
  overlapping of instruments
• Dispute resolution processes and Commission powers

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Employer ChecklistProcess Issues

• Have reasonable steps been taken to ensure that
  at least seven days before the agreement is
  approved all eligible employers
• either have, or have ready access to, by
  reference the agreement in writing including any
  industrial instrument incorporated by reference,
  and
• are given an information statement
• The information statement provided to eligible
  employees must contain
• information about the time at which and the
  manner in which the approval of the agreement
  will be sought
• information about the effect or ss97A or 97B
  (whichever is applicable), which deal with
  bargaining agents
• any other information which the Employment
  Advocate requires by notice published in the
  Gazette

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Employer Checklist (cont.) Process Issues

• Complete a declaration in the form published in
  the Gazette by the Employment Advocate
• Have all the persons employed at the time who
  employment will be subject to the agreement been
  given a reasonable opportunity to decide whether
  they want to approve the agreement?
• If the approval decision is made by vote - did a
  majority of those persons who cast a valid vote
  decide that they wanted to approve the agreement?
  If not by vote majority approval
• Have reasonable steps been taken to ensure that
  all persons whose employment will be subject to
  the agreement are given a copy of the lodgement
  receipt provided by the OEA, within 21 days of
  when the employer receives the receipt?

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Employer Checklist (cont.) Content Issues

• Does the Agreement contain a nominal expiry date
  which is no later than five years after the day
  on which the agreement is to be lodged?
• Does the Agreement include a dispute settlement
  procedure?
• What protected award conditions are relevant?
• Does the Agreement exclude any of the protected
  award conditions?
• Does the Agreement call up any other documents?
  If so, does it comply with s101C?
• Does the Agreement contain any prohibited
  content?
• Is the Agreement consistent with the AFPCS?

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Terminating Workplace Agreements

• By approval
• provision of information statement at least 7
  days before termination
• approval (key change vote counting rather than
  genuineness of consent)
• lodgement of terminations within 14 days of
  approval
• Unilaterally (after nominal expiry date) 2
  options
• manner of termination specified in workplace
  agreement
• on the provision of 90 days notice following
  nominal expiry
• terminates on lodgement - no role for
  consideration of public interest
• Consequences
• Cessation of workplace agreement and any
  otherwise applicable awards (except to the extent
  that they contain protected award entitlements)

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Interaction of Industrial Instruments

• Cessation
• AWA - when replaced by new AWA (even before
  nominal expiry date)
• EBA - when replaced by another EBA (following
  nominal expiry date) in relation to an employee
• Effect of Overlap
• One workplace agreement at one time per employee
• A collective agreement is of no effect on
  employee to whom AWA applies - regardless of
  timing
• A second EBA only binds an EBA employee following
  nominal expiry
• Award of no effect on an employee while workplace
  agreement operates

25
Operation of Existing Federal Agreements

• Pre-reform Div 2 agreements and Div 3 agreements
  continue to operate
• Most of the provisions of the pre-reform WR Act
  remain operational with some Work Choices
  provisions
• No new agreements may be made with exception of
  applications made prior to reform commencement
• Only content invalidated by Work Choices
  anti-AWA terms
• A pre-reform collective agreement
• ceases when replaced by a Work Choices collective
  agreement
• has no effect while an AWA operates
• ceases if terminated under pre-reform WR Act
• prevails to extent of inconsistency with an award
• Similar provisions re pre-reform AWAs (which
  prevail over all)

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Operation of Existing Federal Agreements (cont.)

• Note Some unusual aspects
• A pre-reform certified agreement cannot be varied
  simply on the basis of approval by a valid
  majority (s170MD(6) remains)
• Pre-reform termination provisions continue to
  apply
• S110 of Work Choices apply applies form
  commencement to nominal expiry date a person or
  organisation bound by the agreement must not
  organise or engage in industrial action whether
  or not that action relates to a matter dealt with
  in the agreement
• s109B(2) of Work Choices applies no order re
  protection action ballot may be made within
  nominal term

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Strategic Issues

• Comprehensive agreements
• Careful drafting of dispute resolution mechanisms
• Fundamentals of negotiation remain
• Employment relationship is ongoing