New agreements & prohibited content

Q&A

New agreements & prohibited content

Employers have queried whether new collective agreements are still required to comply with the ‘prohibited content’ provisions under the WorkChoices legislation.

WantToReadMore

Get unlimited access to all of our content.

Employers have queried whether new collective agreements are still required to comply with the ‘prohibited content’ provisions under the WorkChoices legislation.  

A recent question to WorkplaceInfo focused on this issue.

Q.    Our company intends lodging a new collective agreement with the Workplace Authority in the next few weeks. We are aware that recent changes to the Workplace Relations Act (WRAct) mean the agreement must pass the no disadvantage test. However, there has been no mention of any changes to ‘prohibited content’ with respect to lodgement of new agreements after 28 March 2008.

We are concerned that certain conditions may be considered ‘prohibited content’.  

Is a collective agreement still required to comply with the ‘prohibited content’ provisions under the WorkChoices legislation or did the recent amendments delete this provision? 
 

A.     The WRAct still provides that prohibited content cannot be included in workplace agreements.  

A term of an agreement that contains prohibited content is void and cannot be enforced if it is included in a workplace agreement.  

Requests for review

An employer can request that the Workplace Authority Director review a workplace agreement (or variation to an agreement) for prohibited content prior to it being lodged. The review will indicate to the employer either that the agreement contains prohibited content, does not contain prohibited content or that the Authority was unable to determine whether the agreement contains prohibited content.  

An employer can also seek a review of the workplace agreement for prohibited content after it has been lodged with the Workplace Authority.  

Common examples of prohibited content

The most common examples of prohibited content include:

  • deduction of union fees from an employee’s wages

  • paid union training leave

  • restrictions on use of independent contractors or labour hire arrangements;

  • forgoing leave

  • incorporating prohibited content from an award or employment legislation as a secondary document to the agreement.

Content in contracts?

However, some employers have received legal advice (yet to be contested) that a 'memorandum of understanding' containing prohibited content could be incorporated into an employee’s contract of employment and applied under common law.  


Related
 

Prohibited content v non-allowable award matters

 

Post details