Enterprise Agreements Flashcards
Single-enterprise Agreements
* Can be made under the FW Act by a single employer * Involve two or more employers if they are related corporations (or JV or common enterprise, or have single interest employer authorization)
Multi-enterprise Agreements
* Agreement made by two or more employers that cannot establish a single interest * Difference between SEA - protected industrial action may not be taken in support of a multi-enterprise agreement * FW Act does not impose a requirement to obtain an authorization to make an agreement * Vote is requires at each enterprise
Greenfields Agreements
* Can be made for a “genuine new enterprise” * Enterprise that one or more employers establishing or proposing to establish * Cover any category of employee necessary for the conduct of the enterprise, provided no employee has yet been engaged * Able to establish set of conditions that will cover anyone hired for the enterprise
Re Abigroup Agreement (2011)
Greenfield Agreements may also be made before tendering, even if the project may not eventuate
HP Distribution Case
Requirement to involve unions with GA, however do not need to include every union with a potential interest
s187(5)
FWC will approve GA if the unions involved represent a majority of the employees, and approval will be in the public interest
s58(1)
Because more than one EA can apply in a workplace, one enterprise agreement can apply to any given employee, unless they are doing two different jobs.
s182(3)
Greenfield agreement can be made simply by each employer and union signing it and submitting to FWC for approval
Steps for making Enterprise Agreement
* s173, 174 - Notice to current employees and right to be represented * s180 - Once agreement is made, a copy is provided to employees * s181 - Requires employee approval at 50% + 1 * s185(3) - Agreement must be lodged with the Fair Work Commission within 14 days * s186, 187 - Fair Work Commission must make an assessment * Agreement must be freely made * Whether the group of employees freely chosen * Main test: better off overall test
Re Armacell (2010)
BOOT require identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off
Re Bupa Care Services (2010)
Agreement allowed employees to volunteer for additional hours, but be paid at ordinary rate (not O/T). Found that agreement left employees worse off, because employers could escape penalty rates by inducing workers to volunteer to work overtime
s189
* Some agreements that fail the BOOT can be approved under exceptional circumstances * Agreement is part of a reasonable strategy to deal with a short term crisis in the enterprise * Nominal term of no more than two years
s190
* If FWC has concerns, can aspect a written undertaking from an employer covered by the agreement
s343
Prohibits person from seeking to coerce another as to their workplace rights
Electrolux v AWU (2004)
Coercion when Union taking or threatening unprotected industrial action against an employer
s345
General protection that prohibits a person from making a false or misleading representation about another person workplace rights
s228(1)
* Good faith bargaining requirements * Attend, participate in meetings * Disclose relevant information * Respond and give genuine consideration to proposals * Recognize and bargain with representatives * Refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining
CFMEU v Tahmoor Coal (2010)
Bargaining reached an impasses, employer can move to test employee support for agreement. Even when union is involved, employers are able to communicate directly with its workplace.
FSU v Commonwealth Bank (2010)
Granting pay increases to staff except for the union members
Capral v AMWU (2010)
Unions shifting positions late in negotiations
s231
* Bargaining Orders * Failure by one or more representatives to comply with the provision may lead to another representative seeking a bargaining order Representative cannot be ordered to make concessions
s236-237
* Majority Support Determinations * If a majority of the employees covered by the agreement wish to bargain, but the employer does not
Resolution of Bargaining Disputes by FWC
* FWC are able to resolve disputes in a number of ways * s418-420 - Restrain the taking or organizing of unprotected industrial action * s423-426 - Suspend/terminate protected industrial action on certain grounds * s595 - Conduct conciliation or mediation
Mandatory Terms
* Duration (4 years) * Expiry (4 years) * Dispute settlement * Flexibility; and * Consultation
s206
* Base rate of pay must never fall below the minimum provided for in awards or national wage orders * Will automatically increase to match any new minimums
Unlawful Terms
* Terms that cannot be included in an EA. No penalty for proposing them, just unenforceable. Unlawful terms are discriminatory or objectionable Validity of agreement will not be affected by single unlawful term
Non-permitted Terms
* Enterprise agreements are only validity able to deal with the following “permitted matters”: * Relations between each employer * Relations between employers and unions * Deductions from wages; and * How the agreement will operate * The act will allow non-permitted terms to be included with impunity - but will not be enforced
Greenfield Agreements may also be made before tendering, even if the project may not eventuate
Re Abigroup Agreement (2011)
Requirement to involve unions with GA, however do not need to include every union with a potential interest
HP Distribution Case
FWC will approve GA if the unions involved represent a majority of the employees, and approval will be in the public interest
s187(5)
Because more than one EA can apply in a workplace, one enterprise agreement can apply to any given employee, unless they are doing two different jobs.
s58(1)
Greenfield agreement can be made simply by each employer and union signing it and submitting to FWC for approval
s182(3)
BOOT require identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off
Re Armacell (2010)
Agreement allowed employees to volunteer for additional hours, but be paid at ordinary rate (not O/T). Found that agreement left employees worse off, because employers could escape penalty rates by inducing workers to volunteer to work overtime
Re Bupa Care Services (2010)
* Some agreements that fail the BOOT can be approved under exceptional circumstances * Agreement is part of a reasonable strategy to deal with a short term crisis in the enterprise * Nominal term of no more than two years
s189
* If FWC has concerns, can aspect a written undertaking from an employer covered by the agreement
s190
Prohibits person from seeking to coerce another as to their workplace rights
s343
Coercion when Union taking or threatening unprotected industrial action against an employer
Electrolux v AWU (2004)
General protection that prohibits a person from making a false or misleading representation about another person workplace rights
s345
* Good faith bargaining requirements * Attend, participate in meetings * Disclose relevant information * Respond and give genuine consideration to proposals * Recognize and bargain with representatives * Refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining
s228(1)
Bargaining reached an impasses, employer can move to test employee support for agreement. Even when union is involved, employers are able to communicate directly with its workplace.
CFMEU v Tahmoor Coal (2010)
Granting pay increases to staff except for the union members
FSU v Commonwealth Bank (2010)
Unions shifting positions late in negotiations
Capral v AMWU (2010)
* Bargaining Orders * Failure by one or more representatives to comply with the provision may lead to another representative seeking a bargaining order Representative cannot be ordered to make concessions
s231
* Majority Support Determinations * If a majority of the employees covered by the agreement wish to bargain, but the employer does not
s236-237
* Base rate of pay must never fall below the minimum provided for in awards or national wage orders * Will automatically increase to match any new minimums
s206
