When you make an enterprise agreement, sometimes getting it approved is not just a matter of including the correct details…

Sometimes, the attention you pay to the submittal process is just as important.

You see, even if your enterprise agreement meets all the requirements it needs for approval to operate, if you leave just one step out of the pre-approval process, you could find it gets thrown out by Fair Work Australia.

The results of a recent case act as a warning that Fair Work Australia will not approve an enterprise agreement unless every pre-approval requirement has been met.

In the case, the Falls Creek Resort submitted an enterprise agreement for approval, but it was thrown out by FWA. The employer failed to meet his “mandatory” requirement to give employees notice about their right to be represented by a bargaining representative during the agreement making process.

Although FWA said the employer’s failures were “understandable”, given that the representation rights obligations didn’t exist under the previous Act, it still rejected the enterprise agreement.

Check out Charles’ article below to find out exactly how you can meet all of your pre-approval requirements and give your agreement the best possible chance at success.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

How to meet all your pre-approval requirements when submitting an enterprise agreement
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

Before submitting your enterprise agreement for approval, make sure you follow these 5 steps:

1. Explain the enterprise agreement to your employees.

You must take all reasonable steps to ensure that:

• the terms of the enterprise agreement are explained to the employees who will be covered by the agreement; and
• your explanation is appropriate for the employees considering their particular needs or circumstances. For example, you must take into account an employee’s age and language skills. Employees who do not read or speak English very well, for example, may require the agreement to be interpreted for them.

2. Adhere to the 21 day waiting period after the Notice of Representational Rights is given.

Employees must not vote on the enterprise agreement until at least 21 days after you give them notice of their representational rights.

3. Adhere to the 7 day access period.

You must provide all employees who will be covered by the enterprise agreement with either:

• a copy of the agreement; or
• sufficient access to the proposed agreement for a period of 7 days prior to voting on it.

4. Provide the necessary information to employees

At the same time as complying with the access requirements (outlined at point 3 above) and therefore at least 7 days prior to the vote, you must notify your employees of:

• the time and place where the vote will take place; and
• the voting method that will be used (e.g. a ballot or an electronic method etc.)

Once you have satisfied all these steps, you can then ask the relevant employees to approve the agreement via a vote.

5. Make sure your agreement is properly approved!

The employees who are proposed to be covered by the enterprise agreement must all vote either for or against the agreement.

By following the above steps, you will go a long way towards making sure Fair Work Australia’s approval of your agreement doesn’t hit any bumps in the road.

For more information about the agreement making process, check out chapter E2 Enterprise Agreements in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

You may have heard about a few high profile cases recently in which Fair Work Australia has chosen not to approve an enterprise agreement.

For example, back in April, FWA rejected an enterprise agreement submitted for approval by McDonald’s Australia, because it didn’t meet its pre-approval requirements or the no disadvantage test. FWA also found that the agreement failed to meet a number of statutory requirements.

Now, this is an extreme case, but there’s no denying that there is a high possibility that FWA will not approve your enterprise agreement if it doesn’t include everything it should.

But you don’t have to give up hope if this happens to you…

Check out Charles’ article below for some great tips on how you can keep your enterprise agreement alive and not have to go back to the drawing board if it is rejected by FWA.

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

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How to keep your enterprise agreement alive
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

If you apply to Fair Work Australia (FWA) to approve an enterprise agreement, and they decide that your agreement does not meet the better off overall test (BOOT), then you are entitled to submit a written undertaking that might fix the problem.

An undertaking is a written addition to an agreement that addresses one or more deficiencies uncovered by the BOOT.

Submitting an undertaking may mean that FWA will approve your enterprise agreement if it is satisfied that your undertaking suitably addresses the concern/s they had about your agreement.

If FWA approves your enterprise agreement after accepting a written undertaking, then the undertaking will become a term of the agreement and will apply as if it were a part of the agreement.

How will an undertaking work?

The following example shows how an undertaking could work:

You apply to FWA for approval of an enterprise agreement containing a term that prohibits employees taking annual leave in June each year. This breaches your NES obligation not to unreasonably refuse leave applications, so therefore the agreement is not likely to pass the BOOT.

If the undertaking is accepted, the agreement as a whole may be approved and the undertaking will then become a term of the agreement.

A recent FWA decision (BUPA Care [2010] FWAFB 2762) has shown that if FWA decides that a proposed agreement does not pass the BOOT, it must:

• give the employer a chance to give a written undertaking aimed at meeting that concern;
• check that the undertaking has been signed correctly (i.e. by the right person in the right way);
• ask the bargaining representatives for the agreement what they think of the undertaking;
• check whether the undertaking would cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement;
• decide whether the undertaking meets the FWA’s concern; and then
• decide whether to approve the agreement.

For more information about undertakings and the enterprise agreement making process, check out the recently updated chapter E2 Enterprise Agreements in your copy of the Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

This will protect your from potential prosecution under OHS laws.

When conducting a risk assessment of a home office, you must:

1. Establish whether the role is suitable to do from home

Some jobs (e.g. graphic design) can be done safely at home, whereas others (e.g. a fitter and turner) can only be done safely by using special equipment or by following procedures that are not appropriate for home based work.

2. Establish what, if any, equipment will be necessary for an employee to safely undertake home based work

For example, do they have a suitable desk, chair and computer? Do they have access to a basic first aid kit?

If not, you will need to provide them with these things.

3. Establish that the proposed working environment is healthy and safe

For example, is there sufficient lighting? Are exits from the work area kept clear? Is there a smoke detector installed in the room where the person will be working?

If not, you will need to address these issues.

4. Establish that the person working from home has the information and training necessary to do the work safely

You will need to make sure that the employee is familiar with safe working procedures in regards to the equipment they are using.

You will also need to keep in mind that the person working from home will be working with less supervision, and may therefore need more comprehensive training to be able to perform their work safely.

5. Establish agreed hours of work and communications procedures

Establish the specific days and hours the employee will work form home.

You will also need to agree on procedures for recording work hours. This is important for workers compensation purposes – workers compensation arrangements apply to all injuries arising out of the course of employment, whether the injury occurred while the person was working from home or in a more traditional workplace.

You should also establish exactly how the employee’s performance will be monitored and assessed. In order to do this, you will need to establish specific communication procedures to ensure that appropriate information is passed between the person working from home and any other employees/management.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

But how does this really work?

In reality, it is very complicated, especially because there will be a minimum wage increase across all awards on 1 July 2010.

Let me try and explain using an example:

Let’s suppose that you run a retail store in the ACT and have been paying your casual shop assistants the minimum wage under the ACT Retail Award, being $18.22.

So what adjustments will you be required to make on 1 July 2010?

Step 1 - Calculate the transitional amount (this is the difference between the modern award rate (before the national wage increase) and the current rate you are paying):

$19.74 minus $18.22 = $1.52

Step 2 – Calculate 80% of the transitional amount:

0.8 x 1.52 = $1.22

Step 3 - Take the modern award rate after the national wage increase:

$20.40

Step 4 - Deduct the amount calculated on Step 2 from the rate calculated in Step 3:

$20.40 minus $1.22 = $19.18, an increase of 96 cents.

After taking these four steps (using the amounts that apply to you of course), you will arrive at the rate you must pay on 1 July 2010. You will have to repeat this process on 1 Jul 2011 (using a percentage of 60% in Step 2), 1 July 2012 (using a percentage of 40% in Step 2) and 1 July 2013 (using a percentage of 20% in Step 2), until 1 July 2014 when you have to pay the rate derived from Step 3.

Remember, this process applies to you even if you have an operative enterprise agreement in place. While the agreement means that the modern award does not apply, the rates in the agreement cannot be less than the minimum wage rate provided for in the modern award.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

In Tuesday’s Bulletin, I reminded you about all the things you need to be up-to-speed on when it comes to enterprise agreements.

There were quite a few!

But there’s no need to worry – like I said on Tuesday, all the in’s and out’s of enterprise agreements are explained in the updated version of chapter E2 Enterprise Agreements, coming out in your next Employment Law Practical Handbook update.

Not yet a subscriber? Click here for more information.

But if you were considering making an enterprise agreement to tailor a modern award to suit the needs of your business, you may not have to…

There are alternatives to making an enterprise agreement!

Don’t forget – there are a number of other options available to you when it comes to making a modern award more flexible for your business.

Instead of making an enterprise agreement, you can:

• use annualised salary provisions;
• insert set-off provisions into your employment contracts;
• make award flexibility agreements; or
• give guarantees of earnings.

Check out Charles’ article below for more information on these 4 ways of making modern awards suit the needs of your business.

Until next time…

Claire Berry
Workplace Bulletin

When it comes to enterprise agreements, there are so many things you need to be up to speed on.

For starters, you need to choose the right type of enterprise agreement… then you have to decide what you want from it… negotiate with your employees and their bargaining representatives in good faith… choose the content of the agreement… not to mention get it properly approved by Fair Work Australia.

And that’s not even the half of it…

For example, did you know you could breach your good faith bargaining requirements if you fail to consult with a union during the bargaining process?

If a union is your employee’s bargaining representative, you MUST recognise them while enterprise bargaining.

Check out Charles’ article below to find out why.

For even more information on enterprise agreements and the bargaining process, keep an eye out for your next Employment Law Practical Handbook update, due in your mailbox shortly.

It contains an updated version of chapter E2 Enterprise Agreements which will show you exactly how to make, vary and terminate an enterprise agreement in 2010.

Not yet a subscriber to the handbook? Click here for more information.

How to make sure you stay on top of the Fair Work Act

Don’t forget about Charles’ breakfast seminars I told you about last week…

They will cover the implications of the Fair Work Act changes and offer a heap of practical methods for ensuring your business is compliant with the Fair Work Act.

So make sure you don’t miss out! Click here to book your place at these great free seminars.

And remember, by attending, you are guaranteed to come away with information you can start putting into practice in your workplace straight away.

Until next time…

Claire Berry
Workplace Bulletin

Did you know you could dismiss an employee unfairly without even knowing it?

If you change any aspect of an employee’s job, you could find that in the eyes of the law, you have actually dismissed them…

Check out Charles’ article below for more information on how to avoid being sued for wrongful dismissal.

Now here’s a question for you…

How can you legally change an employee’s employment status?

Recently, a subscriber wrote to me with this question so I thought I’d look into it and share the answer with you.

Here’s the query I received:

“Dear Workplace Helpdesk,

I would like to change one of my full-time employees to a part-timer, and I also have two casual employees that I would like to engage on a part-time basis. Are there any legal requirements I must take into account before I do this?”

Here’s the answer our panel of experts gave me:

“In order to change an employee from full to part-time, you will need the consent of the employee.You should record the employee’s consent in writing and provide them with a new contract of employment.

Similarly, in order to convert a casual employee to part-time, you will need their consent. Ideally, you should also provide them with new contracts of employment.

If an employee does not wish to give you consent, you will not unilaterally be able to make this change, because it would expose your company to a claim for breach of contract and potentially attract unfair dismissal proceedings”.

If you didn’t know, the Workplace Helpdesk is a great service you can access if you are a subscriber to the Employment Law Practical Handbook.

Here’s how it works…

Whenever you have a legal issue at work – however small – and you need to be absolutely sure you’re on a sound footing before acting, just email our Workplace Helpdesk with your query and our employment law experts will get back to you, with an answer, within 72 hours – GUARANTEED.

It doesn’t matter which area of employment law your question relates to – or how insignificant you think it is – by emailing us, you can be 100% sure of the action to take, and you’ll be able to move forward with complete confidence.

But remember, this service is only available to Employment Law Practical Handbook subscribers.

If you’re not yet a subscriber, click here for more information on how you can trial the Employment Law Practical Handbook in your workplace FREE for 14 days.

Until next time…

Claire Berry
Workplace Bulletin

If an employee refuses to accept a significant reduction in job status, duties and responsibilities, they might be able to walk away from the employment relationship and sue you for wrongful dismissal.

And sometimes, even provisions in the employment contract that allow you to make changes to an employee’s role can be limited.

A recent case dealing with these issues was decided in the Victorian Supreme Court (Whittaker v Unisys Australia Pty Ltd).

The case concerned a global IT company who employed a person as Vice President and General Manager of a section of the employer’s business in the Asia Pacific region. After 6 years’ service, the manager was told to relinquish those duties to someone else and to undertake a significant 12 month project. The manager refused, walked away from the relationship and sued the employer for damages for breach of employment contract.

The Court noticed that the manager would have received the same pay and reported to the same people if he had undertaken the project. However, the manager had no guarantee that the project would continue after 12 months and the status and responsibilities of the new role were significantly less than his old role.

The employment contract contained a provision that entitled the employer to require the manager to perform other duties from time to time within the limits of his skill base, competence and training. The Court ruled that the manager had the skills and experience to do the job and given that it would only ran for 12 months it met the condition arising from the words ‘from to time to time’.

However, the Court ruled that the employer could not rely on this clause because it only allowed the employer to add duties to the manager’s existing role – not move the manager to a new role in which he would only performed some of the duties of the old role.

The Court awarded the employee damages equal to the pay he would have received if the employer had given him proper notice – which was 6 months under the employment contract.

So what can you learn form this case? Stop and consider these issues before you unilaterally decide to change an employee’s conditions of employment – or you could be sued for wrongful dismissal!

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Employees joining your organisation after this notice is issued cannot claim that they should have received the notice. However, all employees who will be covered by the agreement, regardless of when they became employees, can appoint a bargaining representative at any time up until the vote on the agreement.

If negotiations for an agreement take many months, new employees who will be covered by the agreement will have rights of representation, even though they did not receive a notice advising them of those rights.

And another thing – remember that there must be a clear 7 days (at least) between the time you request employees to vote on an agreement and commencement of the vote. When you request employees to vote you need to explain the voting process and when and where it will commence and end.

For more information on making enterprise agreements, please see the Enterprise Agreements chapter in your Employment Law Practical Handbook.

Not yet a subscriber? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Well, another year is almost over. And whatever 2009 brought for you and your business, there’s no denying it was a HUGE year for workplace relations.

When the Fair Work Act came in last July, the sheer volume of changes it introduced were enough to make anyone’s head spin. Mine certainly did! And it’s not long now before the rest of the legislation comes in on 1 January 2010…

So before that happens, I thought it would be a good idea to reflect on all the changes that were made throughout 2009…

2009 in Review

Over the next week – while you are no doubt enjoying your Christmas break – keep an eye out for a couple of “year in review” editions of the Bulletin. In them, I’ll recap everything you should have taken on board from 2009 – and show you what you have to look forward to in 2010!

In the meantime, if you have any specific employment law questions, send them to us. The Workplace Helpdesk is a great service you can access if you are a subscriber to the Employment Law Practical Handbook. Just e-mail us all your labour-related questions and receive an answer from a lawyer within 72 hours – for free!

Not yet a subscriber? Click here to find out how you can get a 14-day free trial of the Employment Law Practical Handbook.

Merry Christmas!

Claire

And now over to our editor-in-chief Charles Power – he’s got some advice to help you make award flexibility agreements easily (plus a handy award flexibility agreement template!)