Frequently Asked Questions

WHAT IS AN AUSTRALIAN WORKPLACE AGREEMENT?

An Australian Workplace Agreement is a legally binding and enforceable document signed by both the employer and the employee, which contains an employees terms and conditions of employment commonly known as their Contract of Employment.

WHO CAN MAKE AN AUSTRALIAN WORKPLACE AGREEMENT?

An Australian Workplace Agreement can be made if the employer is one of the following:

•  The employer is Constitutional Corporation
•  The employer is the Commonwealth
•  The employer's primary place of business is in a Territory
•  The employer's place of business is in Victoria
•  The employer's business is related to maritime or aviation activities which involve
    interstate/overseas trade or commerce

WHAT IS A CONSTITUTIONAL CORPORATION?

A Constitutional Corporation is a business which has been incorporated under the Corporation Law of a State or Territory that may be classified as either a trading or financial corporation. Businesses which are deemed not to be corporations are Partnerships, Unincorporated Associations and Sole Traders.

WHO IS AUTHORISED TO APPROVE AN AUSTRALIAN WORKPLACE AGREEMENT?

Under Section 83BB of the Workplace Relations Act 1996 (Cth) the Statutory Body authorised to approve Australian Workplace Agreements is the Office of the Employment Advocate .

HOW DOES THE O.E.A. APPROVE AN AUSTRALIAN WORKPLACE AGREEMENT?

One of the primary functions of the Office of the Employment Advocate is for the promotion of better work and management practices through Australian Workplace Agreements. To approve such an Agreement the O.E.A. under Section 170XA of the Workplace Relations Act 1996 (Cth) must assess the Agreement with the relevant industrial Award, to establish whether the Agreement would on balance not disadvantage the employee.

WHAT IS THE STATUTORY NO DISADVANTAGE TEST?

The "No Disadvantage" test is a process used by the Office of the Employment Advocate to determine whether on balance if the Agreement were to be approved, the employee would not be worse off as a whole in comparison with the relevant industrial Award.

WHAT IS THE RELEVANT INDUSTRIAL AWARD?

If the employer is covered by either a State or Federal Award, then that Award would be used for the purposes of the Agreement being assessed for its approval. If however the employer is unsure as to which Award they are covered by, they should contact either the Department of Workplace Relations or their industry association. If no relevant Award applies to the business, the employer must apply in writing to the Office of the Employment Advocate for a determination as to a designated Award.

IMPORTANT FACTS ABOUT AN AUSTRALIAN WORKPLACE AGREEMENT

It is most import to remember that Australian Workplace Agreements are entirely voluntary, and as such the relevant provisions of the Workplace Relations Act 1996 (Cth) strictly prohibits either party from forcing the other into entering an Australian Workplace Agreement.

For example it is prohibited for anyone:

•  To apply duress to an employer or employee in connection with an Agreement
•  To knowingly make a false or misleading statement to another person with the intention of
    persuading the other person to make, or not make an Agreement
•  For an employer to dismiss an employee because the employee refused to negotiate, make or sign
    an Agreement

PERIOD OF OPERATION

An Australian Workplace Agreement may specify a nominal expiry date. Such a date cannot be more than three (3) years after the date upon which the employer and the employee first signed the Agreement. If no nominal expiry date was specified within the Agreement, then the Act states that the nominal expiry date will be three (3) years from when the parties first signed the Agreement.

FILING AND APPROVAL PROCESS

The application process involves the issuing of a Filing Receipt by the O.E.A. upon receipt of the Agreement within the allotted time frame of 21 days of the Agreement having been made. This is further followed by the issuing of an Approval Certificate once the Agreement has been examined and deemed to have passed the "No Disadvantage" test.

The time frame for this whole process can vary depending upon the complexity of the Agreement, and the number of employees who have signed the Agreement. However the O.E.A. upon receipt of the Agreement endeavours to issue Filing Receipts within 5 working days of having received the Agreement, and a further 20 working days for the issuing of the Approval Notice.