Awards and workplace agreements
The area of employment law is extremely complex and with the change of Federal Government in November 2007 there will be several important changes to the law.
The first set of changes to workplace relations came into effect on 28th March 2008 with the commencement of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. The key provisions of the Transition to Forward with Fairness Act:
- Prevents the making of new Australian Workplace Agreements (AWAs);
- Allows employers using AWAs as at 1 December 2007 to offer individual transitional employment agreements (ITEAs) to new employees and employers already on AWAs, for the transition period while award modernisation takes place;
- Introduces a genuine no-disadvantage test for new collective agreements and ITEAs;
- Enables the Australian Industrial Relations Commission (AIRC) to undertake the process of award modernisation; and
- Removes the requirement for employers to provide the Workplace Relations Fact Sheet to their employees.
The following information is to be used as a guide only. To find out if you are covered by an award or a workplace agreement and for information about your employment conditions contact the Workplace Infoline (formerly Work Choices / Wageline) on 1300 363 264 between 8:00am - 7:00pm Monday to Friday or visit their web site: www.workplaceauthority.gov.au/
Federal Awards / Common Rule Awards
Awards apply to specific industries and set the minimum terms and conditions to which an employee is entitled such as wages, hours of work. However, awards do not cover all employees.
Workplace Agreements
Workplace agreements, which include collective agreements and individual employment transitional agreements (ITEAs), are required to be lodged at the Workplace Authority and pass a No Disadvantage Test. A workplace agreement passes the no-disadvantage test if the director from the Workplace Authority is satisfied that:
"it does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employee whose employment is subject to the agreement under any reference instrument (such as collective agreement, pre-WorkChoices certified agreement or award) relating to the employee(s)."
Collective Agreements
Collective Agreements are negotiated between an employer and a group of employees and /or a trade union. All employees must receive a copy of the Information Statement for Employees (Collective agreements) from their employer seven (7) days before the agreement is approved by employees. Agreements commence operation, except in the case of greenfields agreements, on the seventh day after the Director of the Workplace Authority issues a notice to the employer that the agreement has passed the No Disadvantage Test. Collective agreements were formerly called enterprise or certified agreements and if made before 28th March 2008 they continue to apply until terminated or replaced.
top of pageIndividual Employment Transitional Agreements (ITEAs)
An ITEA is an individual agreement between an eligible employer and employee. An eligible employer is an employer who must have had at least one employee covered by an individual agreement such as Australian Workplace Agreement (AWA) as at 1st December 2007. An eligible employer may only offer an ITEA to:
- New employees - no later than within 14 days of commencing employment.
- Previously employed employees - no later than within 14 days of commencing employment.
- Existing employees covered by an ITEA, AWA or other individual agreement. An existing employee cannot be forced to sign an ITEA.
Employees must be provided with a copy of the Information Statement for Employees (Individual transitional employment agreements) from their employer seven (7) days before the agreement is approved. An ITEA with a new employee commences the day the agreement is lodged with the Workplace Authority. While in the case of an existing employee it commences the seventh day after the Director of the Workplace Authority issues a notice to the employer that the agreement has passed the No Disadvantage Test and the employee has been sent a letter. ITEAs will apply until terminated or replaced by mutual agreement or unilaterally after the expiry date.
Please note: AWAs made before 28th March 2008 will continue to apply until terminated or replaced by mutual agreement or unilaterally after the expiry date.
Minimum employment conditions
If an employee is not covered by an award or workplace agreement they are entitled to the The Australian Fair Pay and Conditions Standard. The Standard contains five minimum conditions:
- A federal minimum wage or guaranteed basic rate of pay under an applicable Australian Pay and Classification Scale. For casual employees, a casual loading of 20% is guaranteed.
- Maximum ordinary hours of work limited to 38 hours per week (which can be averaged over up to twelve months) and reasonable additional hours
- Four weeks paid annual leave per year (five weeks for some continuous shift employees and pro rata for part-timers). Up to two weeks of this can be cashed out at the employee's written election where their workplace agreement allows it.*
- Ten days paid personal/carer’s leave per year and two days paid compassionate leave for each relevant occasion.* Where this paid personal leave has been exhausted, two days unpaid carer's leave per occasion. The unpaid leave is available to casuals.
- For all employees other than certain casual employees, up to 52 weeks unpaid parental leave (maternity, paternity and adoption)
* These conditions do not apply to casual employees. They are based on a full-time employee working 38 hours per week and apply on a pro-rata basis for part-timers according to the hours worked by the employee.