THE APPLICATION OF MODERN AWARDS AND ENTERPRISE AGREEMENTS UNDER THE FAIR WORK ACT.
Nurses in the main, are covered by the national workplace relations system regulated by the Fair Work Act 2009 (FWA) with the major exception being nurses employed in the public sector in New South Wales, South Australia, Western Australia, Tasmania and Queensland. (See the State based public sector agreements on pages 22 and 23 for the respective States).
For nurses covered by the national system, the Nurses Award 2010, together with the National Employment Standard (NES), provides the safety net of wages and conditions of employment, except for those employed in primary and secondary schools who are covered by the Educational Services (Schools) General Staff Award 2010.
However, for the vast majority of nurses and midwives, wages and conditions are determined by enterprise agreements negotiated by the ANMF and nursing employers across all areas of the public and private health and aged care sectors. Under the national workplace relations system, where an approved enterprise agreement is in operation, the wages and conditions under the agreement apply in place of the Award.
Agreement making under the Fair Work Act 2009
The Fair Work Act 2009 sets out the rules and requirements for negotiating enterprise agreements, including rights and obligations of the employer, employees and bargaining representatives and the process that must be followed. A bargaining representative is a person or organisation that each party may appoint to represent them during the negotiations. Where employees are members of a union, the union is automatically a bargaining representative regardless of the number of members at a workplace.
An employer must notify employees of their right to be represented by a bargaining representative during the bargaining process by providing a "Notice of Employee Representational Rights" (NERR). Specific rules apply to when the employer provides the notice and the information provided in the NERR. (This requirement does not apply to Greenfields agreements, that is, where it is a new enterprise before any employees are employed).
The Fair Work Act 2009 sets out good faith bargaining requirements that bargaining representatives are required to meet such as attending and participating in meetings at reasonable times; responding to proposals in a timely manner and giving genuine consideration to proposals. It does not however, require parties to reach agreement on terms to be included in the agreement.
The taking of "protected industrial action" in support of bargaining is subject to specific requirements under the FWA. If industrial action by employees is not "protected" employees and their union may be subject to orders from the Fair Work Commission and subsequent fines if the industrial action is continued.
Employees who will be covered by an enterprise agreement must have the opportunity to vote for or against the proposed agreement. The FWA sets out the requirements in relation to information and access to the documents before voting commences. A vote is successful if the majority of employees who cast a valid vote endorse the agreement.
If employees vote in favour of the enterprise agreement the agreement is "made" and it can be submitted to the FWC for approval.
Better off overall test
Before the FWC approves an agreement the Commission must be satisfied that it meets a number of requirements under the FWA including the Better Off Overall Test (BOOT). For an agreement to pass the BOOT, the FWC must be satisfied that employees will be better off overall if the agreement applied rather the relevant award.
Generally, an enterprise agreement operates seven days after it is approved by the FWC.
Please note the above information is a brief overview only. For further information please contact your ANMF Branch. (Contact details are at page 43.)
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|Date:||Jun 1, 2018|
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