From 1 July there is only one form of collective agreement – Enterprise Agreement. The union is automatically appointed as bargaining agent unless somebody else is appointed in writing. And the union is able to sign themselves up to your agreement by notifying the Industrial Relations Commission.
Vitale says that under the new laws, as long as there is one union member in the workplace, that union is entitled to enter. In some cases unions can enter workplaces where they have no members and no award coverage. He says there is a perception among employers that pattern bargaining across industry is back.
The good faith bargaining rules mean that all parties have legal obligations to attend and participate in meetings, disclose certain information for negotiations, give genuine consideration to proposals and refrain from capricious conduct, among other things. So, from 1 July 1 if the union doesn’t like the way the employer is negotiating, it can go to the new Fair Work Australia Tribunal and ask for orders to force the employer to attend meetings, for example, or in some other way bargain in good faith.
The more serious risk for employers is that if there is repeated non-compliance with good faith bargaining, there can be an arbitrated outcome. In other words, a dispute over bargaining procedure can lead to Fair Work Australia setting the terms and conditions of employment in your workplace.
Andrew Douglas, workplace lawyer and adviser, says employers need to manage agreement negotiation carefully and fairly, and make sure all discussions are documented.
He recommends that managers take on the role of keeping employees informed of negotiations by sending out minutes of the meetings immediately. Because if the manager doesn’t the union will, and the manager should be working on keeping staff onside. The last thing you need is a perception among staff that you are not co-operating in the bargaining process.
From 1 January, 2010 the new streamlined modern awards will be in force. These awards will apply to all businesses that run as a company, and in all states where the industrial powers have been referred to the Commonwealth (in other words, Victoria).
Employers must work out as soon as possible which ones apply to their employees. The draft modern awards can be found on the Australian Industrial Relations Commission website.
Andrew Douglas says now is a good time to revisit all your contracts of employment to ensure they comply with the relevant awards and the National Employment Standards (more on this below).
He says while many employers pay above award wages, they don’t pay leave loadings or other terms included in some awards. In this case he says you need to add a ‘set off’ clause that states that the above award pay sets off the lack of the other condition. If you do not have such a clause, he says, you could be sued for the benefits not paid.
You can also ‘contract out’ of the award in the case of high income employees – those earning over $100,000 a year – by entering a guarantee of annual earnings.
Douglas suggests that while you are re-doing your employment contracts make sure they exclude any reference to your policies and procedures. A recent case found that a safe place of work policy was part of an employee’s contract so that a breach of the policy amounted to a breach of the employment contract.
Modern awards will not apply to an employee covered by Work Choices collective agreements, AWAs and ITEAs, but these agreements will eventually expire and you can’t enter another at the end.
From 1 January 2010, the National Employment Standards will set the new minimum standards for all employees, including in many cases, casuals. They cover everything that was in the Australian Fair Pay and Condition Standards plus new rights including:
As we move from one incredibly complicated IR system to another incredibly complicated IR system, there are technical rules about what happens to old agreements. Here are a few key points:
From January 1, 2010 employers have to give all new employees the Fair Work Statement, which will contain information about the NES, modern awards, agreement making, freedom of association and the role of Fair Work Australia and the Fair Work Ombudsman.
Whatever your business and whatever kind of agreements you have, the rules have changed. So any change of employee’s conditions in the workplace has to be carefully managed and documented. The IR experts say now is a good time to review your employment contracts and make sure you are complying with the new laws.
James was the editor and publisher of SmartCompany and LeadingCompany for five years. He is now the Australian Financial Review‘s companies & markets editor, and a former BRW editor.
