In the first edition of the Workplace Bulletin I covered the minimum conditions set out by the Workplace Relations Act (WR Act). Today, I am going to tell you how to avoid a $33,000 penalty for lodging a workplace agreement that contains prohibited content.
- Definition: prohibited content are the particular terms and conditions that cannot be included in Workplace Agreements.
There is a long list of prohibited content set out in the WR Act (in regulations. 8.5, 8.6, 8.7 and 8.8). Prohibited terms can be grouped into four main categories: those that seek to prevent restrictions on agreement making, encourage or discourage union membership or industrial action, or seek to include discriminatory terms.
For the full list, refer to the WR Act, or the Workplace Authority website http://www.oea.gov.au.
Be sure to avoid a fine… or a court date
All workplace agreements, even those containing prohibited content, are effective from the day they are lodged. But be careful – if your agreement is found to contain any prohibited content, you could face penalties further down the track (and they will back date these to the time the workplace agreement was lodged).
Employers face penalties of up to $33,000 for lodging an agreement that contains prohibited content. Furthermore, it is also an offence to negotiate an agreement that seeks to include prohibited content (s 365). Additionally, the court may declare the agreement void, in whole or in part (s.347), or even vary the terms of the agreement to remove the prohibited content (s. 363). The court may also order you to pay further compensation to your employee.
If you are unsure about anything in your agreement, it is best to seek advice from the Workplace Authority (1300 363 264 or www.oea.gov.au). The website provides forms to download if you want to request a review of your workplace agreement for prohibited content before lodging.
Your workplace agreement could become invalid at any time…
The federal government has an open ended power regarding what must not be included in a workplace agreement (s 356). Prohibited content is set out by a series of regulations under the main WR Act, and these regulations can be changed at any time without a parliamentary debate. This means that what constitutes prohibited content is at the discretion of the government and can change suddenly. As an employer, you must always be up-to-date with these changes to ensure no prohibited content is in your agreement.
It is important to understand all current government regulations, as any change could make a term crucial to your agreement suddenly invalid. Regulations surrounding specific prohibited content can take effect retrospectively. Therefore, a term in a workplace agreement may be valid at the time you made the agreement, but at a later stage can be made void by a change of the regulations.
There are many differences between workplace agreements and employment contracts. For this reason, some employers are exploring the opportunities offered by contracts of employment. Our next issue will examine more closely alternative options for workplace bargaining, including collective agreement making.
Yours Sincerely,
Laura MacIntyre
Editor
The Workplace Bulletin
Tags: prohibited content
