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Australian Workplace Agreements (AWAs)

 Integrity, Vision, Achievement

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The Australian Fair Pay and Conditions Standard (the Standard) contains five (5) minimum conditions. By law, no workplace agreement can provide conditions which are less than those in the Standard.
 
Those 5 minimum conditions are:
 
1.      The federal minimum wage, minimum award classification rates of pay and casual loadings as set by the Australian Fair Pay Commission;
2.      Four weeks paid annual leave per year (five weeks for continuous shift employees) up to two weeks of which can be cashed out in a workplace agreement;
3.      Ten days paid personal/carer’s leave per year and two days compassionate leave per occasion;
4.      Up to 52 weeks unpaid parental leave (maternity, paternity and adoption); and
5.      Maximum ordinary hours of work limited to 38 hours per week (which can be averaged over twelve months in an agreement or award) and reasonable additional hours.


Prohibited Content

Certain subjects may not be included in an Australian Workplace Agreement (AWA) and this is known as prohibited content. A term of an agreement which contains prohibited content is void and cannot be enforced as part of the agreement.
 
Prohibited content includes terms of an agreement that:
 
1.      deal with pay deductions and payroll deductions facilities for trade union membership;
2.      deal with the rights of trade unions to be involved in dispute resolution;
3.      deal with the renegotiation of a workplace agreement;
4.      deal with the foregoing of annual leave (other than in accordance with the Workplace Relations Act 1996);
5.      allow persons bound by the workplace agreement to engage in or organise industrial action;
6.      provide a remedy for dismissal for a reason which is harsh, unjust or unreasonable;
7.      are discriminatory because of reasons including race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
8.      deal with matter that does not pertain to the employment relationship;
9.      directly or indirectly restrict the ability of workplace agreements to be offered, negotiated or entered into.
 
There are a range of other terms which would be considered prohibited content in addition to those listed above. 
 
Once employees sign an AWA, that agreement must be lodged with the Office of Employment Advocate within 14 days.   If an employer lodges a workplace agreement containing prohibited content the employer may be fined up to $6,600 for individuals or up to $33,000 for corporations.
 
Before providing a workplace agreement to employees for approval and signature it is important to obtain advice on whether the proposed agreement contains prohibited content. Employers or employees may ask the Office of Employment Advocate to review the proposed agreement to ensure it does not contain any prohibited content. Alternatively if you would like assistance in this regard please contact our Employment and Industrial Team on
(07) 3223 6400.

Coercion and Duress in Agreement Making an Offence

It is not an offence for employers to make the signing of a workplace agreement a condition of being engaged or offered employment.  It is an offence however to coerce or force an employee by duress to make, approve, vary or terminate a workplace agreement. Generally speaking, duress means that someone puts illegitimate pressure on another person to:
  • do something that you are not obliged to do; or
  • not do something you are entitled to do.
That is, the pressure must prevent the other person from exercising their own free will. Some examples of duress may be:
  • a threat that person may lose their job if they do not sign an AWA;
  • a threat that person may be demoted/lose work if they do not sign an AWA; or
  • a threat to make unreasonable changes to that person’s roster or location of their worksite unless they sign an AWA.

Appointment of Bargaining Agent

Either an employer or employee may be represented by another person in relation to the making, variation or termination of an AWA. The appointed representative is called a bargaining agent. The agent cannot represent both the employer and employee. The person on whose behalf the agent is acting must appoint the bargaining agent in writing.

If a person takes action to compel or force another person to appoint or not appoint a bargaining agent or to terminate the appointment of a bargaining agent that person is liable for penalties of up to $33,000.
 
If you would like Quinlan Miller & Treston to act as a bargaining agent on behalf of you as an employee or your company as the employer please contact our Employment and Industrial Team on (07) 3223 6400.

Operation of the Workplace Agreement

Both the employer and employee make an AWA at the time when it is signed and dated, those signatures have been witnessed and if the employee is under the age of 18 the document signed and dated by the appropriate legal guardian.
 
A workplace agreement starts operating on the day the agreement is lodged with the Office of Employment Advocate (http://www.oea.gov.au/). The Employment Advocate will issue a receipt when the declaration and the workplace agreement is lodged. The date of the receipt will be the date the agreement starts operating.

All workplace agreements contain what is called a nominal expiry date. For all agreements this can be up to 5 years from the date the agreement is lodged. If a workplace agreement does not contain a nominal expiry date, the nominal expiry date will automatically be the fifth anniversary of the date of lodgement. However, a workplace agreement does not come to an end on that date, but continues to operate until terminated or replaced. The main significance of the nominal expiry date is that it allows a party (without agreement by the other party) to terminate the agreement by following certain conditions.

Telephone: 07 3223 6400 Facsimile: 07 3223 6444 Address: Level 32, 239 George Street, Brisbane 4000
Post: GPO Box 2500, Brisbane 4001 | DX Mail: DX 40096 Brisbane
Email: qmt@qmtlaw.com.au ABN 37 355 684 469