What are enterprise agreements?
Enterprise agreements set out conditions of employment for a group of employees at 1 or more workplaces.
They differ from contracts because they're governed by workplace relations law and will override an award.
Enterprise agreements are made under the new Fair Work Act 2009.
What are workplace agreements?
Before the Fair Work Act 2009, workplace agreements were made under the Workplace Relations Act 1996.
These agreements included Individual Transitional Employment Agreements (ITEAs), Australian Workplace Agreements (AWAs) and collective agreements.
ITEAs and AWAs
ITEAs and AWAs were a type of agreement that was made between an employer and an employee and lodged with a government agency. ITEAs and AWAs can no longer be made or lodged. ITEAs and AWAs that have been validly lodged continue to operate until terminated or replaced.
Collective agreements
Collective agreements made before 27 March 2006 were called certified agreements and were lodged with the Australian Industrial Relations Commission. Collective agreements made after 27 March 2006 were lodged with the Office of the Employment Advocate or the Workplace Authority.
What happens with state agreements moving into the national system?
New South Wales, Queensland, South Australia and Tasmania have referred certain workplace relations matters to the Commonwealth. These referrals take effect on 1 January 2010.
State employment agreements that are in operation under a law of one of these States before 1 January 2010 will move into the national workplace relations system as a result of this referral. The agreements will continue to operate until they are terminated or replaced. These state agreements are called Division 2B State employment agreements.
Rights & rules for making enterprise agreements
There are a number of rights and rules about making an enterprise agreement, including:
- All enterprise agreements must be lodged with Fair Work Australia and are subject to the no-disadvantage test (NDT) until 31 December 2009. From 1 January 2010, all enterprise agreements are subject to the better off overall test (BOOT).
- Enterprise agreements must comply with the Australian Fair Pay and Conditions Standard (the Standard) until 31 December 2009. From 1 January 2010, all enterprise agreements need to comply with the National Employment Standards (NES).
- Employers must give the employees who'll be covered by the agreement notice of their right to appoint a bargaining representative to help them negotiate their agreement within 14 days the agreement-making process started.
The notice explains that the employee is required to give a copy of any appointment to the employer and explains about default bargaining representatives. The notice has been set by the law.
- Employers must then give another 21 days after providing the last of the above notices before holding a vote to decide whether the agreement is or is not approved.
- Employers must ensure that the employees who are to be covered by the agreement are given a copy or access to the agreement and any other incorporated material for the 7-day period before voting starts.
- The employer must also notify their employees who are to be covered by the agreement, by the start of the access period, of voting details, ie. time, place and method.
- The employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to employees.
- It's against the law to force an employee to approve, vary or terminate an enterprise agreement.
Different rules about making the agreement apply to enterprise agreements that are greenfields agreements.
The Fair Work Ombudsman will investigate any allegations of illegitimate pressure applied to an employee to approve, vary or terminate an enterprise agreement and may take legal action if required.
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