Workplace relations bill: details of the agreement 11/11/96

Analysis

Workplace relations bill: details of the agreement 11/11/96

In today’s HR Link, we outline the consequences of the Government/Democrat agreement on AWAs, non-union certified agreements and union rights of entry powers.

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In today’s HR Link, we outline the consequences of the Government/Democrat agreement on AWAs, non-union certified agreements and union rights of entry powers.

Australian Workplace Agreements

The groundbreaking proposal to allow workplace parties to register individual agreements (AWAs) under the federal industrial relations laws has been maintained.

However, the agreement between the Government and the Democrats has resulted in the removal of a number of provisions which would have distinguished AWAs from the other available federal industrial instruments.

For example, the original proposal to have AWAs immune from third party review has been removed. AWAs will be vetted by the Employment Advocate.

Furthermore, if the Employment Advocate has any doubts as to whether the AWA meets the ‘no disadvantage’ test (which replaces the original minimum standards test), then the AWA must be referred to the federal Commission. In this way, the Commission will be able to overview the manner in which the ‘no disadvantage’ test is applied to AWAs.

On the positive side, it will now be possible to register an AWA which does not meet the ‘no disadvantage’ test in circumstances where the AWA is part of a reasonable strategy to deal with a short term business crisis.

The original proposal which sought to ensure that the contents of AWAs were kept secret has been watered down through the inclusion of a provision which states that the agreement must not prohibit or restrict disclosures of details of the AWA by either of the parties subject to the AWA.

Note also that the Employment Advocate will be able to make parts of an AWA available for examination or analysis for research purposes provided the rights of privacy of the parties to the AWA are maintained.

Other notable changes include the requirement that the employer’s declaration which must accompany the AWA will have to include, among other things, a declaration stating whether the employer has offered the AWA in the same terms to all comparable employees. And in cases where the employer did not offer the AWA to other comparable employees, the Employment Advocate must ensure that the employer did not act unfairly or unreasonably in failing to do so.

Finally, it is important to note that the agreement between the Government and the Democrats did not address the issue of whether the parties to an AWA will be able to bring an action under common law and not just under the Act. It would appear that, without express wording stating otherwise, the parties to an AWA will be able to sue under both the Act and at common law.

This is important because of the amount of damages which a party claiming breach of employment contract may be able to obtain under common law. For example, an employer who in 1989 was found to have breached a contract of employment was ordered to pay $195,000 in damages to the particular employee. Compare this with the Act under which the maximum penalty is $10,000. For this reason, parties intending to enter into an AWA are encouraged to seek legal advice.

Finally, it is important to remember that AWAs are only available to corporate employers.

Non-union Certified Agreements

The agreement maintains the proposed right of corporations to make federally registered non-union agreements.

As with the AWA provisions, the agreement between the Democrats and the Government means that non-union certified agreements will also be subject to the ‘no disadvantage’ test.

In addition, when the employer informs the employees of its intention to enter into the agreement, the employer has to inform employees who are union members of their rights to have their union meet and confer with the employer.

Furthermore, the employer must allow any such union a reasonable opportunity to meet and confer with the employer.

Right of Entry

The original proposals dealing with union rights of entry have been drastically watered down.

Unions will no longer require a written invitation from an on site member. Furthermore, unions will be able to enter work sites where there are employees who are merely eligible to be members of the union. The amended right of entry provisions, in fact, very much reflect the right of entry provisions under the recently commenced NSW Industrial Relations Act 1996.

 

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