New – Preparing for the New World of Enterprise Agreement Making

The new world of enterprise agreement making in a nutshell

The new world of enterprise agreement making commenced operation from 1 July 2009. The new agreement making regime saw a complete end to individual registered employment agreements, and the creation of new enterprise agreements.

Key features of the new world of enterprise agreement making include:

• Introduction of a new ‘better off overall test’ from 1 January 2010
• New requirements to notify employees of their right to be represented by a bargaining representative
• A new definition of ‘single employer’ which will enable franchise systems to collectively enter into a single enterprise agreement

For further detail on the new world of enterprise agreement making, click here

Preparing for the new world of enterprise agreement making

While the new world of enterprise agreement making took effect from 1 July 2009, a bridging period operating from 1 July 2009 to 1 January 2010 as summarised below.

A business currently developing a registered agreement must have a clear understanding of different provisions affecting drafting, voting, lodgement and assessment of a registered agreement where any of these steps take place, during or after this bridging period.

	Prior to 1 July 2009	From 1 July 2009 to 31 December 2009 ‘The Bridging Period’	From 1 January 2010
Workplace agreements available	Collective Agreements (union and non union). Employer Greenfields Agreement & ITEAs	Enterprise Agreements (single enterprise, multi-enterprise, greenfields and single-interest employer) & ITEAs	Enterprise Agreements (single enterprise, multi-enterprise, greenfields and single-interest employer)
Obligation to notify employees of bargaining representation rights	Not a separate obligation – general obligation to provide an information statement no less than 7 days prior to vote	Required to provide a notice of bargaining representation rights within 14 days of notification time (i.e. from when an employer initiates bargaining)	Required to provide a notice of bargaining representation rights within 14 days of notification time (i.e. from when an employer initiates bargaining)
Obligation to explain terms of workplace agreement to employees	Not a separate obligation – general obligation to provide an information statement no less than 7 days prior to vote	Employer must take all reasonable steps to explain terms to employees, including employees with particular circumstances (i.e. young employees or those without a bargaining representative)	Employer must take all reasonable steps to explain terms to employees, including employees with particular circumstances (i.e. young employees or those without a bargaining representative)
Request to approve workplace agreement	Employer request must be made no less than 7 days prior to vote	Employees must have agreement for 7 day access period prior to vote. Employer request must be made no earlier than 21 days from the date the last notice of bargaining representation rights given to employees	Employees must have agreement for 7 day access period prior to vote. Employer request must be made no earlier than 21 days from the date the last notice of bargaining representation rights given to employees
Content of workplace agreements	Must comply with the Australian Fair Pay and Conditions Standard. Certain content prohibited under Workplace Relations Regulations 2006	Must comply with Australian Fair Pay and Conditions Standard. Must not contain certain unlawful terms (i.e. discriminatory or objectionable terms). Must include individual flexibility arrangement provisions and consultation provisions about workplace change.	Must comply with National Employment Standards. Must not contain certain unlawful terms (i.e. discriminatory or objectionable terms). Must include individual flexibility arrangement provisions and consultation provisions about workplace change.
Minimum wages payable under workplace agreement	WorkChoices agreements – subject to the AFPCS. Pre-WorkChoices agreements – subject to the terms of the agreement only	WorkChoices agreements – subject to the AFPCS. Pre-WorkChoices agreements – subject to the terms of the agreement only. Enterprise Agreements – subject to the AFPCS	Every workplace agreements subject to the minimum rate payable under the relevant modern award
Assessment of workplace agreement	NDT against relevant reference instrument (i.e. award or NAPSA)	NDT against relevant reference instrument (i.e. award or NAPSA)	Better off overall test (BOOT) against relevant modern award
Regulating Government Bodies	Workplace Authority	FWA	FWA
Process if workplace agreement does not meet benchmark test	Employer and employees must approve and lodge a variation agreement with the WA – includes a further vote	FWA will accept undertakings from the employer to meet NDT (no further vote required)	FWA will accept undertakings from the employer to meet BOOT (no further vote required)

Author: Adrian Wong