WELCOME TO THIS
NSW INDUSTRIAL RELATIONS
WEBINAR
- HOT TOPIC
OPIC “ENTERPRISE AGREEMENTS”
TOPICS COVERED
 Timeline of Key Events
 The National Employment Standards
 Hot Topic “Enterprise Agreements”
 Important Information
 Useful contacts and links
TIME LINE OF KEY EVENTS
1 January 2010
 National Industrial Relations System commences for all
NSW private sector employers and employees
 10 National Employment Standards commence for all
National system employers and employees
 Modern awards apply for employers in the federal system
prior to this date
1 February 2011
 Modern awards apply for employers who were in the NSW
system prior to 1 Jan 2010
INTRODUCTION TO THE NATIONAL
EMPLOYMENT STANDARDS (NES)
(NES)
 10 minimum conditions of employment that apply to all
National Industrial Relations system employees, including
those not covered by a modern award
 Modern Awards and other instruments build on, supplement
and interact with the NES
Enterprise
Agreements
Modern Awards
10 National Emp
ployment
y
Standards
INTRODUCTION TO THE NATIONAL
EMPLOYMENT STANDARDS (NES)
(NES)
1. Hours of work
2. Requests for flexible work arrangements
3. Parental leave
4. Annual leave
5. Personal / Carers and compassionate leave
leave
6. Community Service Leave
7. Long
L
S
Service
i L
Leave
8. Public Holidays
9. Notice of termination and redundancy
10. Fair Work Information Statement
HOT TOPIC
“ENTERPRISE AGREEMENTS”
TOPICS COVERED
 Objective
 What is Enterprise
p
Bargaining
g
g
 Potential outcomes
 Types of Enterprise Agreements (EA)
 Permitted matters
 Mandatory terms
 Unlawful content
 The Process
 App
pproval
 BOOT
 Good Faith Bargaining
 Bargaining Representatives
 Protected Industrial Action
 Low Paid Bargaining
 Terminating an EA
ENTERPRISE AGREEMENTS
Objectives:
 The Fair Work Act 2009 promotes productivity
productivity, fairness and
cooperation through an emphasis on enterprise level collective
bargaining.
 To provide a simple, flexible and fair framework that enables
collective bargaining in Good Faith, particularly at the
enterprise level that deliver productivity benefits; and
 To enable the Fair Work Commission to facilitate Good Faith
Bargaining and the making of enterprise agreements through:
 Making bargaining orders
 Dealing with disputes where the bargaining representatives
request assistance
 Ensuring that applications for approval are dealt with without
delay
ENTERPRISE BARGAINING
What is Enterprise Bargaining?
 Enterprise bargaining is a formal process where the employer,
employees and their representatives (such as unions) negotiate for
p
agreement
g
(EA)) that may
yp
provide for chang
ges in the
an enterprise
terms and conditions of employment at that workplace. There must
be at least 2 employees to make an EA. An EA cannot be made with
a single employee.
employee
 Best practice enterprise bargaining is where the employer and
employees work cooperatively and in Good Faith towards reaching
an agreement that meets the needs of employees and employers.
 Enterp
prise Bargaining
g
g can assist in the creation of resp
ponsive and
flexible enterprises to improve productivity and efficiency which can
lead to job security, satisfying work and increased productivity and
profits.
profits
ENTERPRISE BARGAINING
Why Enterprise Bargaining?
 Re-negotiate an existing EA that has passed its nominal
y date
expiryy date or about to reach the nominal expiry
 An employer may decide to seek productivity
p
or flexibilities that p
provide imp
provements to
improvements
their workplace by negotiating an EA with employees
 Employees may decide to establish an EA with the
employer
 Federal funding initiatives such as the recent aged care
and child care industries funding that will be contingent
upon employers making enterprise agreements
ENTERPRISE BARGAINING
Potential Outcomes
 Higher wages to attract and retain staff
 More flexible hours and rosters
 Broader job classifications and multi
multi-skilling
skilling
 New training, education and career opportunities
 Profit sharing and other forms of performance related pay
 Agreement to achieve efficiency gains, new production
targets or a reduction in waste
 Improved service delivery to achieve greater client
satisfaction
 Family friendly arrangements such as child care facilities, job
sharing and career breaks
 Improved procedures for handling employee grievances and
consultation in the workplace
ENTERPRISE AGREEMENTS
Types of Enterprise Agreements
Single-enterprise agreement
 Is made between a single employer or two or more
single interest employers and employees employed at
greement is made and who will be
the time the ag
covered by the agreement.
 Sing
gle interest employ
p yers are those that are in a joint
venture or common enterprise or are related
corporations or employers such as franchises or other
employers authorised as single interest employers by
the Minister
ENTERPRISE AGREEMENTS
Types of Enterprise Agreements
Multi-enterprise agreement
 Is made between two or more employers (that are not single
i t
interest)
t) and
d employees
l
employed
l
d att th
the ti
time th
the agreementt iis
made and who will be covered by the agreement
Greenfields agreement
 A greenfields agreement is an enterprise agreement that is made in relation to a new enterprise of the employer/s before any employees are employed. This can be either a single-
enterprise agreement or a multi-enterprise agreement
 Th
The partities to a greenfi
field
lds agreementt are the
th emplloyer//s and
d
one or more relevant employee organisations (union) who
become the default bargaining representative for employees to
covered by the agreement
ENTERPRISE AGREEMENTS
Enterprise Agreements may be made about Permitted
Matters
 Matters pertaining to the employment relationship
between the employer and the employees to be
covered by the agreement
 Matters pertaining to the relationship between the
employer/s or employee organisation/s that will be
covered by the agreement
 Deductions from wag
ges for any
yp
purp
pose authorised by
y
the employee who will be covered by the agreement
 How the agreement will operate
ENTERPRISE AGREEMENTS
Enterprise Agreements Mandatory terms
 A nominal expiry date for the agreement which is no longer than 4
years from the date the Fair Work Commission approves the
agreement
 A dispute settling procedure, which must authorise either the Fair
Work Commission or someone else that is independent of those
covered to settle disputes about any matters under the agreement in
relations to terms of a modern award or the NES
 A flexibility
yterm that allows for the making
g of an individual flexibility
y
arrangements (IFA) for the purpose of meeting the genuine needs of
the employer and the employee
 A consultation
l i
term which
hi h requires
i
the
h employer
l
to consultl their
h i
employees about any major workplace changes that are likely to
have a significant effect on them and the right to have representation
in consultation
ENTERPRISE AGREEMENTS
Enterprise Agreements Unlawful content
 A Discriminatory term
 An Objectionable term which require or allow payment for a
ba gaining
barga
g se
services
ces fee,
ee, or
o a contravention
co a e o o
of the
e g
general
e ea
protections provisions of the Fair Work Act 2009
 A term that confers an entitlement or remedy in relation to unfair
dismissal before employee has reached the qualifying period for
unfair dismissal applications
 A term that excludes, or modifies the application of unfair dismissals
i a way th
in
thatt iis dettriimenttall tto or in rellatition to a person
 A term that is inconsistent with the industrial action provisions
 A term that provides for an entitlement to right of entry
 A term that allows for any state/territory OHS legislative right of
entry in a manner different to the right of entry provisions of the Fair
Work Act 2009
ENTERPRISE AGREEMENTS (EA)
( )
The Process
Step 1 initiating
 Employer or employees decide to bargain for an Enterprise Agreement (EA)
 Employer provides employees to be covered by the agreement the Notice of Representational Rights (www.fwc.gov.au)
 Employer considers what the business needs are for the agreement and the interests
of employees
 Employees and their representatives consider what changes to conditions and the
needs of the business
Step 2 bargaining
 Employer, Employees and/or bargaining representatives work together to develop an
agreement that is good for business productivity and efficiency and benefits
employees working conditions
 E
Employer
l
iis to take
k reasonable
bl steps
to explain
l i the
h effect
ff
off the
h EA h
having
i particular
i l
regard to the needs of employees such as age, cultural background and those not
represented by a bargaining representative
 Duriing thi
this ph
hase th
there mayb
be severall meeti
tings wh
here infformatition is sh
hared
d and
d
proposals made by both parties in good faith to reach an agreed outcome for the EA
ENTERPRISE AGREEMENTS (EA)
The Process
Step 2 bargaining cont
 Employer is to give employees a written copy of the proposed
EA along with any incorporated material throughout the access
EA,
period which is at least 7 days before the vote
 Emp
ployer
y is to take reasonable step
ps to exp
plain the terms of the
agreement and the effect to relevant employees
 The explanation is provided in an appropriate manner taking into
accountt the
th particular
ti l circumstances
i
t
and
d needs
d off th
the relevant
l
t
employees
 The employer must take reasonable steps to notify the relevant
employees the time and place at which the vote will occur and
the voting method to be used either by ballot or by an electronic
method
ENTERPRISE AGREEMENTS (EA)
The Process
Step 3 Acceptance
 Employees then vote to either accept or not accept the agreement,
which must be at least 21 days after the employer gave the employees
the Notice of Representational Rights (Step 1)
 For the agreement to be accepted there must be a majority of employees to be covered by the EB cast a valid vote in favour
 If not approved by the majority of employees, those covered by the
agreement may return to the bargaining phase and re-negotiate and
vote for an amended agreement with a further 7 days access period to
consider any changes
 If accepted by the majority of employees to be covered, an application mustt be
b made
d tto th
the F
Fair
i Work
W k Commission
C
i i ffor approvall within
ithi 14 d
days
of the agreement being accepted
pp
the ag
greement if it
 The Fair Work Commission will then approve
complies with the legal requirements such as the BOOT test
ENTERPRISE AGREEMENTS (EA)
Approval of Enterprise Agreements by the Fair Work Commission (FWC)
 The basic rule for an enterprise agreement to be approved
approved, the FWC
must be satisfied that:
 If the agreement is not a greenfields agreement – the agreement has
been genuinely agreed to by the employees covered by the agreement;
and
 If the ag
greement is a multi-enterp
prise agreement
g
no person was coerced,,
or threatened to coerce any of the employers to make the agreement
 The terms of the agreement do not contravene the interaction between
the National Employment Standards and the enterprise agreement
 The agreement passes the better off overall test and has a nominal expiry
date
 That the group of employees covered by the agreement was fairly chosen
if the agreement does not cover all employees
 Contains the mandatory provisions for dispute settling and consultation
but no unlawful terms
ENTERPRISE AGREEMENTS (EA)
( )
Better Off Overall Test (BOOT)
 For an enterprise agreement (other than a greenfields EA) to be approved, the Fair Work Commission must be satisfied that at the test time for each award covered or prospective
prospective
award covered employee would be better off overall if the
greement applied
pp
than the relevant modern award
ag
 A Greenfield agreement passes the better off overall test if
the Fair Work Commission is satisfied as at the test time, that
each prospective award covered employee for the
agreement would be better off overall if the agreement
applied than the relevant modern award
 Modern awards and the NES underpin the EA
ENTERPRISE AGREEMENTS (EA)
( )
Good Faith Bargaining
 The parties and their bargaining representatives must meet the good faith
bargaining requirements under the Fair Work Act 2009; including:
 Attending and participating in meetings at reasonable times
 Disclosing relevant information in timely manner
manner, other than confidential or
commercially sensitive information
 Responding to proposals made by other bargaining representatives in a timely
manner
 Giving genuine consideration to the proposals made by other bargaining
representatives and reasons for any response
 Not behaving in a capricious or unfair way that undermines freedom of
association or collective bargaining
 Recognising
g
g and bargaining
g
g with other barg
gaining
g rep
presentatives for the
agreement
 On application the Fair Work Commission can issue a bargaining order if
there are too many bargaining representatives or the bargaining process is
not proceeding efficiently or fairly
ENTERPRISE AGREEMENTS (EA)
Bargaining Representatives (non-greenfields)
ployer
y that will be covered by
ythe a greement is a barg
gaining
g
 An emp
representative for the agreement
 An employee organisation is a bargaining representative of an employee
l
covered
db
by th
the agreementt if
 The employee is a member of the organisation
 IIn the
th case off a multi-enterprise
lti t
i agreementt subject
bj t tto a llow paid
id
authorisation the organisation applied to FWC for a low-paid bargaining
authorisation
 A person is a bargaining representative of an employee who will be
covered by the agreement if the employee appoints in writing as his
or her bargaining representative for the agreement
 A person is a bargaining representative of an employer that will be
covered by the agreement if the employer appoints in writing the
person as his or her bargaining representative for the agreement
ENTERPRISE AGREEMENTS (EA)
Protected Industrial Action (Section 436)
g
gre presentative
 This provision of the Fair Work Act 2009 allows a bargaining
to determine whether employees wish to engage in particular protected
industrial action for a proposed enterprise agreement
 Only available for Single enterprise agreements
 An application to the Fair Work Commission for a protected action ballot (vote) must be made specifying;
 The group/s or employees to be balloted
 The question/s to be put to the employees who are to be balloted and the
nature
t
off th
the proposed
d iindustrial
d t i l action
ti
 The Australian Electoral Commission is the default ballot agent unless sp
pecified otherwise by
y the Fair Work Commission
 Fair Work Commission must determine the application within 2 days of it being made and employer notified within 24 hours of making the application and copy of same to the employer
employer
ENTERPRISE AGREEMENTS (EA)
( )
Low- paid Bargaining
 The Fair Work Act 2009 has provision to assist and encourage
low-paid employees and their employers that have not
historically had the benefits of collective bargaining
bargaining, to make
an enterprise agreement that meets their needs
 A barg
gaining
g rep
presentative for the ag
greement or an emp
ployyee
organisation that is entitled to represent the interests of an
employee in relation to the work to be performed under the
agreement may apply to the FWC for low
low-paid
paid bargaining
authorisation if it is in the public interest to do so
 The FWC may on its own initiative provide to the bargaining
representatives assistance to facilitate the bargaining or to
deal with a dispute but only arbitrate if expressly authorised to
do so
ENTERPRISE AGREEMENTS (EA)
Terminating an Enterprise Agreement (EA) before nominal
expiry date
 Employees and employers may jointly agree to terminate an EA
 Single-EA: The employer and all the employees covered by the agreement
 If the agreement covers 2 or more employers: All of the employees
covered by the agreement
 Employers may request employees to approve a proposed
termination of an EA by voting for the termination
 The employer must take all reasonable steps to notify employees the time
time,
place and voting method that will be used and give employees reasonable
opportunity to decide whether to terminate
 A tterminati
i tion off an EA is
i agreed
d tto when
h
 Single-EA: when a majority of employee cast a valid vote to approve
termination
 Mutli-EA: when a majority of the employees of each employer cast a
valid vote to approve termination
ENTERPRISE AGREEMENTS (EA)
( )
Terminating an Enterprise Agreement (EA) before nominal expiiry date
d t
 When agreement is reached, a person covered by the agreement
mustt applly tto tth
he FWC withi
ithin 14 days
d
with
ith accompanyiing
declaration or otherwise later as the FWC allows
 Termination of the EA applies if the FWC is satisfied that employees were given a reasonable opportunity to decide; and  there are no other reasons to believe they have not agreed; and
 the views of the any employee organisation/s if covered
 The termination comes into operation from the day specified in the
decision by FWC
ENTERPRISE AGREEMENTS (EA)
( )
Terminating an Enterprise Agreement (EA) after nominal expiry date
 If an EA has passed its nominal expiry date any of the following may apply to
FWC for termination of the EA;
 One or more employers covered by the agreement
 An employee covered by the agreement
 An employee organisation covered by the agreement
 The FWC must terminate the agreement if it is not contrary to the public interest
to do so and it considers it appropriate to terminate taking into account
 The views of the employees, each employer and each employee organisation if
covered; and
 The circumstances of those employees, employers and organisations including
the likely effect that termination will have on them
 Termination of the EA operates from the day specified in the decision by FWC
to terminate the agreement
 The EA will continue to be valid and in operation passed its nominal expiry
date until an application is made to FWC to terminate the agreement
IMPORTANT ISSUES
 Typ
ypes of Enterp
prise Ag
greements (EA))
 Permitted matters
 Mandatory terms
terms
 Unlawful content
 The
Th Process
 Approval
 BOOT
 Good Faith Bargaining
NSW IR SERVICES & CONTACTS
 Workshop and Webinar Programs
 NSW IR, in partnership with the Fair Work Ombudsman, is helping
NSW businesses better understand how the national workplace
relations system works through a comprehensive employer
information program.
 NSW IR’s team of experts conduct free face-to-face workshops and
seminars and also live and recorded online webinars.
 Further information on our current program and online registration may be found at:
at:
www.industrialrelations.nsw.gov.au/Workshops.page
 Did you know that you can subscribe to NSW IR’s
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What s
New?” update? This notifies subscribers of all forthcoming
ps and webinars by
y email. Simp
ply
y click on to the “eworkshop
Newsletter” link on our homepage to subscribe.
NSW IR SERVICES & CONTACTS

NSW IR is also able to provide partnership arrangements with
stakeholders in NSW to deliver education and information services
on IR/HR topics
NSW IR Advisers
 Toni Minovski
 Wollongong, Southern, Central and Southwest NSW
 [email protected]


David Madden
 Central coast, Hunter, Central, Northern and Northwest NSW
 [email protected]
Denise
D
i Morosini
M
i i
 Sydney Metropolitan NSW
 Denise.Morosini@
@industrialrelations.nsw.gov.au
g
USEFUL CONTACT & LINKS

NSW Industrial Relations - 13 16 28
 Employment Records and Payslips webinar
 National Employment Standards (NES) webinar
 Transitional Arrangements in Modern Awards
 Workshop Program
 Long
L
S
Service
i Leave
 Public Holidays
 www.industrialrelations.nsw.gov.au

Fair Work Ombudsman - 13 13 94
 RSS alerts – Really Simple Syndication
 Modern Award Finder / Pay and Conditions Guides
 Fact
F t Sh
Sheets,
t ttemplates,
l t
pay ttools
l and
d other
th resources ffor emplloyers
 Guidance Note – Transitional Arrangements
 www.fairwork.gov.au

Fair Work Commission - 1300 799 675
 Modern Awards
 Fair Work Act 2009
 Enterpri
E t
ise A
Agreementts & U
Unfair
f i Dismi
Di issalls
 www.fwc.gov.au