WorkChoices Advice from the Experts

The Agreement Making Process after Workplace Relations Reforms

WorkChoices is an attempt to simplify agreement making in the workplace. It establishes the Australian Fair Pay Commission (“AFPC”) and the Australia Fair Pay and Conditions Standard (the “Standard”). The AFPC is responsible for setting the Standard and minimum wages. This Standard encompasses:

• Wages as set by the AFPC (current minimum wage is $12.75 per hour);
• A maximum of 38 ordinary hours worked per week (plus any reasonable additional hours);
• Annual leave of 4 paid weeks per year;
• Personal/carer’s leave of 10 paid days per year, 2 days unpaid per occasion and 2 days paid compassionate leave per occasion; and
• Parental leave of 52 unpaid weeks per year.

Victorian quarry employees currently covered by the Quarry Industry (Victoria) Award will continue to be covered by this award. The Standard, however, will now underpin the award and wages will be set by the AFPC.

For Victorian quarry employees covered by existing certified agreements, the agreement will continue to operate. The agreements however, cannot be varied and will be replaced by workplace agreements formed under WorkChoices when they expire, or earlier, if terminated.

WHY IMPLEMENT A WORKPLACE AGREEMENT?

Under WorkChoices, the way in which workplace agreements are drafted and lodged has fundamentally changed. These changes make it not only easier to draft an agreement, as they no longer need to be compared to the relevant award, but they are also easier to lodge.

WorkChoices reforms provide a great opportunity for employers to review their current employment relationships and to consider workplace agreements as a simple alternative to awards when hiring new employees or when employment contracts expire.

Workplace agreements also have benefits for employees who are able to negotiate with their employer the terms and conditions that they want included in the workplace agreement.

WHAT IS A WORKPLACE AGREEMENT?

There are six types of workplace agreements of which only the first five are relevant to the Quarry industry.

They are:

1. Australian Workplace Agreements: individual agreements between the employer and the employee;
2. Employee Collective Agreements: where a group of employees, without any union involvement, negotiate their workplace agreement;
3. Union Collective Agreements;
4. Union Greenfield Agreements: where unions negotiate an agreement for future employees;
5. Employer Greenfield Agreements: where an employer makes an agreement for future employees and there is no union involvement; and finally,
6. Multiple business agreements: agreements aimed primarily at franchisors.

REQUIRED CONTENT

Every workplace agreement must be underpinned by the Standard and include conditions that are at least as generous as the Standard.

Workplace agreements must also include a ‘nominal expiry date’. This is the date that the agreement will operate until and can be no longer than five years after commencement. Workplace agreements must also include a dispute settlement procedure.

If an agreement does not contain a dispute settlement procedure, the model procedure found in the Workplace Relations Regulations 1996 (“the Regulations”) will be taken to apply.

Further, protected award conditions such as rest breaks, annual leave loading, public holidays, penalty rates and loading for overtime/shift work are included in the workplace agreement unless the agreement specifically excludes/modifies them.

PROHIBITED CONTENT IN WORKPLACE AGREEMENTS

In addition to required content, there is also prohibited content. This means that some matters are specifically excluded from inclusion in workplace agreements.

The Regulations contain an extensive list of the matters that cannot be dealt with. This list includes any term that:

• Deals with payroll deductions for membership subscriptions or dues;
• Allows employees to receive leave to attend union training sessions or paid leave to attend union meetings;
• Restricts either party’s ability to offer, negotiate or enter into an Australian Workplace Agreement;
• Deals with the rights of trade unions or employer associations to be involved in dispute resolution;
• Deals with the right of entry by unions and employer associations on to the employer’s premises;
• Restrictions on engaging independent contractors/labour hire workers and requirements concerning conditions under which independent contractors/labour hire workers are engaged;
• Deals with the foregoing of annual leave credited to an employee bound by the agreement;
• Requires the provision of employee information to trade unions unless required by law;
• Directly or indirectly discourages other persons bound by the agreement to not become or to remain a member of an industrial association;
• Terms allowing a person bound by the workplace agreement to engage in or organise industrial action;
• Any term giving employees a right or remedy in respect of unfair dismissal, that is, a dismissal for a reason that is harsh, unjust or unreasonable;
• Any term or matter that does not pertain to the employment relationship.

Employers need to be aware of prohibited content as financial penalties of up to $33,000.00 may be imposed on employers who lodge a workplace agreement containing prohibited content.

LODGMENT OF A NEW WORKPLACE AGREEMENT

Once a workplace agreement has been drafted it may be lodged with the Office of the Employment Advocate (“OEA”) by mail or online on their website (www.oea.gov.au).

It is recommended, however, that before full lodgment all employers pre-lodge their draft workplace agreement with the OEA to check it for prohibited content, in so doing, employer’s can remove the risk of fines.

After pre-approval the following steps must be taken to lodge the agreement:

1. The employer must give the employee an Information Statement (such statements can be downloaded from the OAE website) at least seven days before the workplace agreement is signed by both the employer and the employee.
2. The employer must give the employee at least seven days to consider the workplace agreement unless the employee waives this period in writing.
3. The employer and the employee must sign and date the workplace agreement and have their signatures witnessed. Please note that the witnesses to the signatures must be independent of the agreement.
4. The employer and the employee’s full name and address must be included in the workplace agreement.
5. Once signed, the workplace agreement can then be lodged with the OEA. This can be done online or by submitting the agreement by post.
6. The workplace agreement must also be accompanied by a declaration (also available online) which declares that:
   1. The information provided in the workplace agreement is true and correct;
   2. The agreement has been signed and dated by all parties and witnessed;
   3. The employer gave the employee at least seven days to consider the agreement before it was signed;
   4. The employer gave the employee seven days to consider the information statement before it was signed; and finally,
   5. The workplace agreement was lodged within fourteen days of being signed and witnessed.

The workplace agreement begins to operate after it has been correctly lodged and both the employer and the employee will receive receipts from the OEA to acknowledge this.

The employer must then keep a signed copy of the workplace agreement for the duration of the agreement and for seven years after the agreement is terminated, in accordance with the record keeping reforms.

EMPLOYEES

• Employers are not allowed to force or unduly pressure employees into signing a workplace agreement. If an employee believes that someone has attempted to coerce them into signing a workplace agreement they can contact the Office of Workplace Services (“OWS”), www.ows.gov.au , who investigate employee claims and prosecute any employer breaching Workplace Relations legislation.
• The OWS also provides assistance for employees who, after being presented with a workplace agreement, are unsure of their rights, or whether the agreement is providing them with their correct entitlements.
• All employees that are presented with workplace agreements should be advised to thoroughly read both the information statement and the agreement and raise any queries either directly with their employer or seek further advice.

For further information please contact Accredited Workplace Relations Specialist, Philip Brewin or Elizabeth Wright on 03 96147111 or by email, Nevett Ford will be conducting a Workshop for CMPA Members on September 28 on Workplace Agreements for the Quarrying Industry.

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