mastering workplace relations
In addition to providing a copy of the new enterprise agreement and any material incorporated by reference, the employer is required to provide to the employees proposed to be covered by the new enterprise agreement information on how the employees will vote. The vote can be conducted “by ballot or by an electronic method”.
A Schedule of the FW Act prescribes the format of the NERR. The NERR must be provided to the employees at least twenty one days before the employees are asked to vote on the agreement. If the time period is not met, the Commission cannot approve the agreement. Once the NERR has been provided to all employees who are proposed to be covered by the enterprise agreement, then the employer and the employees are bargaining. Or in other words the negotiations over a new enterprise agreement have commenced. All persons / parties that are involved in the bargaining process need to ensure that they bargain in good faith. The good faith bargaining principles are prescribed in the FW Act. I have assumed that the persons / parties that are involved in the bargaining process have come to an agreement on the terms and conditions of employment (and other matters) that will be incorporated into a new enterprise agreement. The new enterprise agreement is then subjected to the approval process.
Voting Under the FW Act, the employer is required to ensure that a copy of the new enterprise agreement and any material incorporated by reference is provided to the employees proposed to be covered by the new enterprise agreement. This information needs to be with the employees for at least seven days (this seven day period can be part of the twenty one day period that the NERR needs to be with the employees).
The new enterprise agreement is made (or approved) when “a majority of those employees who cast a valid vote approve the agreement”. This means that of those employees who vote, if there is a majority of the votes cast, that approve the new enterprise agreement, then the new enterprise agreement has been made (or approved). The parties to the new enterprise agreement are then required to submit the new enterprise agreement to the Commission.
The Commission The Commission will consider and determine whether the new enterprise agreement passes the tests prescribed in the FW Act. Apart from checking that the new enterprise agreement contains the mandatory terms (consultation clause, flexibility clause, dispute and grievance clause, nominal expiry date, etc.) the Commission is required to assess the new enterprise agreement. The assessment will involve the Commission undertaking a better off overall test. The new enterprise agreement will pass the better off overall test “if the… (Commission)… is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee”.
employee covered by the agreement; or (b) result in substantial changes to the agreement.” An undertaking given by the employer (and accepted by the Commission) will form part of the enterprise agreement. If the Commission approves the new enterprise agreement, the new enterprise agreement will commence operation seven “days after the agreement has been approved” by the Commission. Generally speaking, once the enterprise agreement has been approved by the Commission, and is in operation, the Plumbing and Fire Sprinklers Award 2010 (PFS Award) would no longer have operation or application to an employee covered by the enterprise agreement. However, an enterprise agreement may be drafted in such a way that it is read in conjunction with the PFS Award, or that the PFS Award (or parts of it) may be incorporated into the enterprise agreement. It needs to be understood that this summary of the agreement process is very much that – a summary. It does not purport to represent an accurate summary of all of the requirements that parties to an enterprise agreement are required to pass. However, it does provide a summary of the agreement process.
As is the case with any workplace/ industrial relations situation, it is always best to get advice or assistance prior to taking any action. Members can access a huge range of workplace relations resources online at plumber.com.au. Alternatively members who need advice or guidance can contact Phil Eberhard, Master Plumbers Senior Workplace Relations Advisor, on 03 9321 0720 or 0425 790 722 or via email phil.eberhard@plumber.com.au
If the new enterprise agreement does not pass the better off overall test, then the Commission will provide the employer with an opportunity to provide an undertaking. An undertaking can only be accepted by the Commission “if the… (Commission)… is satisfied that the effect of accepting the undertaking is not likely to: (a) cause financial detriment to any www.plumber.com.au | 49