Fair Work Commission And Agreement Making

The Functions of Fair Work Commission

Discuss about the Fair Work Commission in the Making and Approving of Agreements.

The Fair Work Commission (FWC) of Australia was previously known as the Fair Work Australia. It is the industrial relations tribunal from Australia that was established by Fair Work Act in 2009. FWC is an self-governing body and has a power to conduct various functions that involves offering safety net for minimum conditions and minimum wages, making and approving the agreements, handle the applications related to unfair dismissal and regulation of industrial action (Stewart et al., 2014). The commission also carries out the works related to the functions of workplace determinants, business transfer, equal wage, protection in general workplace and rights regarding entry and stand down. The activities of the commission are carried out by the members of the commission that is overlooked by the president with the assistance of the administrative members (Skinner et at., 2014).

Enterprise agreements are the collection of agreements that are made at the enterprise level among the employees and employer regarding the conditions and terms and conditions of the employment. The FWC deliver information regarding the procedure of making the enterprise agreements and at the same time evaluate and approve the agreements. They also deal with the dispute that arises regarding the terms of any agreement (Ho et al., 2014). An agreement of the enterprise can take place between two or more than two employees and one or more than one employers along with their selected representatives. In case of Greenfield agreement, the employer bargain with one or more than one employee unions as there are no worker employed. Modern award includes the whole occupation or industry and provide an obligation for minimum working environment and wage rate (Manoharan, Gross & Sardeshmukh, 2014). Agreements of particular enterprise can be modified to achieve the requirement of specific enterprise. The agreements of enterprise generally includes a wide range of subjects like pay rates, working environment, overtime allowance, process for dissolving disputes, wage deduction for any authorised purpose and the consultative system. However, they do not deal with the unlawful content like objectionable and discriminatory terms. There are three types of enterprise agreements based on which the agreements are processed for the approval (Pocock,  Charlesworth & Chapman, 2013). The types of agreements that are recognized by the FWC are.

Agreements related to the Single-enterprise that involves single employer and one or more than one franchisees or employer who cooperates for the requirements of the single enterprise and the employers under this are known as the employers for single interest.

Types of Agreements Recognized

Agreements related to the Multi-enterprises that involve two or more than two employers who do not come under the scenario of singe interest employers.

Finally, the Greenfield agreements that involve the new enterprises that are established or suggested to be established by one or more owners and where no employees are engaged yet required for the general conduct of the business. These kinds of agreements are either multi-enterprise based or based on single-enterprise.

As per the Fair Work Act 2009, the agreements are continued to operate even after the expiry date if they are not terminated or replaced by the commission. Though the provisions related to the previous agreement applied by the Fair Work will continue to be effected for the transitional agreements (Approval process, 2017).

If an employer decides to use the agreement for covering the employees of his enterprise, then his agreement must e approved by the FWC before registering and then only the employer and the employees can start working.

On the 1^st step the employer must work as a bargaining representative. As an owner of the business, he is automatically assigned him in the position of bargaining representative for his own interest. However, he always has the option of choosing someone else in writing for the said position. The employees also are in a position to choose in writing someone else as the bargaining representative who can be appointed among themselves or an organization of employee to which they are related, for instance, the workers union. Once the employees and the employer agree to the conditions and terms involved in the agreement, the bargaining representative can apply to the FWC for the approval of the agreement within 14 days period after making the agreement.

In the 2^nd step the employer must decide about the inclusion of application. If the employer is the bargaining representative and has decided to lodge the agreement with the FWC, the employer is required to make a declaration and the same is also required to be given by the bargaining representative of the employees. The original copy of the agreement is needed to be signed by both the parties. Three copies of the agreement along with one additional copy is given by the FWC, if the agreement is approved. The documents can be sent through online, e-mail, post or fax. The forms required for the agreement can be found in the official website of the FWC along with the information regarding the completion of the form.

Enterprise Agreements

The final step is to assess the fulfilment of requirement for the agreement. The FWC after going through the application must assess the the agreement to be assure that the agreement is agreed upon by the employees, it shall not contravene the standards set by the national employment commission, it must pass through the test of “better of overall”. Further the agreement must take into consideration the interest of the employees and must assure that the approval of the agreement in no way would affect the good faith upon bargaining representative. Moreover, it must meet the minimum requirements regarding the dealing with the outworkers and shift workers and shall not include any unlawful terms. The approval of agreement has an expiry date and is not valid for more than four years from the date of the approval. If the FWC has any query regarding the agreement, it may ask the employer or employees or both, to attend hearing, however, the agreement can be approved without holding any hearing, if the FWC feels so. The association can take 50 days approximately to approve the agreement, however, the progress regarding the approval can be enquired by dialling 1300-799-675.

One the bargaining procedure gets completed and a proposal for the agreement is made, certain specific steps are required to be performed to ensure that the agreement will be approved by FWC. The pre-approval steps that are required to be taken by the employers are to assure that the agreement terms and the impact of those terms are communicated to employees and the communication is made through suitable manner.

Further, the approval is required from majority of employees through a vote and it must cover the proposed agreement from both the parties. The vote shall be carried out at least after the expiry of 21 days from the last day of notice given to the employees regarding the representational rights. The employer must take into consideration all the reasonable steps to assure that the employees covered in the initial 7 days period of access, must get the copy of the agreement and any other substance that is incorporated by the agreement reference. An agreement is made when the successful vote is received as follows –

For agreements related to single-enterprise, favour must be received from a majority of employees who are eligible to cast valid vote. For the agreement related to multi-enterprise, favour must be received from a majority of employees employed at least under one employer who are eligible to cast valid vote. However, if the agreement is not voted for by all the employees, then the content of the agreement must be altered to cover the employees view. Further, for the agreement of Greenfield, the agreement must be signed by the entire employer and the pertinent employees of the company those are covered by the agreement (Roles & O’Donnell, 2013).

Approval Process

The agreement must cover the terms like, matters related to the relationship among the employer and employees covered by the agreement, operation methodology of the agreement and clause related to the wage deduction for any authorised purpose. However, it shall not cover any unlawful content like any objectionable or discriminatory term, a clause which will enable the employer or employee to opt out from the agreement, a clause that modifies, excludes or includes the application of unjustified dismissal procedure, a clause that is not consistent with the industrial procedures or a clause that grant the remedy or entitlement related to the unjustified dismissal before completion of an employee’s minimum period of employment. When the commission approves the agreement, it communicates its decision along with the approved agreement and the copies are sent to all the involved parties and the agreement and decision will be published in the official website of Fair Work Commission (Fair Work Commission approval for enterprise agreement, 2017).

There are various advantages associated with the the process of applying and approving the agreements by the FWC. Through the process of the agreement the employees get securities in the environment they work. Further, the agreement process ensures their rights of payment, wages and protects them from undue deduction of wages. It promotes cooperation, fairness, productivity through collective bargaining and underpinning the bargaining obligations with good faith (McCrystal, 2014). Moreover, the employees and the employers engaged in the in the bargaining work with best practices. The participating parties in the agreements also feel themselves as equal partners in the procedure of negotiation and achieving the common goal of the organization.  It assists in achieving more flexible roaster and hours, classification of wider jobs, career opportunities and new trainings, improving the service delivery and improve the procedure for handling the grievances from the employees and resolving the issues regarding the workplace issues (Pekarek & Gahan, 2016). 

The disadvantages with the agreement process are that if the Fair work commission feels that the agreement can be passed without conducting any meetings with the employer and employees, chances are there that the employees may be deprived through passing of the agreements and they will not get any chance for explaining their view. Further, the process may be time consuming if it does not get confirmation from either of the parties. Moreover, it takes much time for getting confirmation through votes. Further, while taking the votes and majority vote is not received from all employers’ employees, then only the employer’s employees that includes most favourable vote are only considered. Thus, the employees who are not considered may feel deprived (Shofinita & Langrish, 2014).

From the above discussion, it can be concluded that the procedures for lodging the employment agreement and getting the approval is easy and simple. However, if the employer is not sure about the sufficiency of the agreement content to be approved, then he may seek for legal advice. Legal advisor can suggest the employer that whether the agreement fulfil the legal requirements of the FWC or not.

Reference:

Approval process. (2017). FWC Main Site. Retrieved 4 April 2017, from https://www.fwc.gov.au/awards-and-agreements/agreements/approval-process

Fair Work Commission approval for enterprise agreement. (2017). LegalVision. Retrieved 4 April 2017, from https://legalvision.com.au/how-does-the-fair-work-commission-approve-an-enterprise-agreement/

Ho, C. K. M., Jackson, T., Harrison, M. T., & Eckard, R. J. (2014). Increasing ewe genetic fecundity improves whole-farm production and reduces greenhouse gas emissions intensities: 2. Economic performance. Animal Production Science, 54(9), 1248-1253.

Manoharan, A., Gross, M. J., & Sardeshmukh, S. R. (2014). Identity-conscious vs identity-blind: Hotel managers’ use of formal and informal diversity management practices. International Journal of Hospitality Management, 41, 1-9.

McCrystal, S. (2014). Designing Collective Bargaining Frameworks for Self-Employed Workers: Lessons from Australia and Canada. International Journal of Comparative Labour Law and Industrial Relations, 30(2), 217-242.

Pekarek, A., & Gahan, P. (2016). Unions and collective bargaining in Australia in 2015. Journal of Industrial Relations, 0022185616636104.

Pocock, B., Charlesworth, S., & Chapman, J. (2013). Work-family and work-life pressures in Australia: advancing gender equality in “good times”?. International Journal of Sociology and Social Policy, 33(9/10), 594-612.

Roles, C., & O’Donnell, M. (2013). The Fair Work Act and worker voice in the Australian Public Service. Adel. L. Rev., 34, 93.

Shofinita, D., & Langrish, T. A. G. (2014). Spray drying of orange peel extracts: Yield, total phenolic content, and economic evaluation. Journal of Food Engineering, 139, 31-42.

Skinner, N., Elton, J., Auer, J., & Pocock, B. (2014). Understanding and managing work–life interaction across the life course: a qualitative study. Asia Pacific Journal of Human Resources, 52(1), 93-109.

Stewart, A. J., Bray, M., Macneil, J., & Oxenbridge, S. (2014). ‘Promoting cooperative and productive workplace relations’: exploring the Fair Work Commission’s new role.