300 Page Essay

The Better Off Overall Test Ensures That, From An Employee’s Perspective, Enterprise Agreements Are Better Than Modern Awards.

Introduction

Employment issues have arguably played a prominent role in our life, particularly if the matter at hand is related to wages and other fundamental conditions of an employee. The laws have covered major aspects of these considerations .However, some of the more fundamental laws regarding enterprise agreement and modern awards have received a significant space in various discussions. The award system in Australia has introduced standards of employment that would safeguard employees. The enterprise agreement creates a safety net on matters concerning pay rates and certain conditions of employment. However, the enterprise agreement introduced new abilities for employees to make an agreement to different terms and conditions of employment. Therefore, I agree with the statement that the better off overall test ensures that, from an employee’s perspective, enterprise agreements are better than modern awards. In order to be ratified by the FWC, enterprise agreement must pass the ‘better off overall’ test (BOOT). A contract often passes the test of every award protected employee, and every potential award-covered worker would be better off overall under the contract compared to the pertinent modern award.

Discussion And Analysis

The Fair Work Act (FWA) allows both employees and employers to develop binding enterprise agreements that are achieved when the majority of staffs who have validly voted, supported an agreement and follow the provisions under S. 182 of the FWA. It is important to note that once the enterprise agreement is put to effect, a modern award cannot be applied and thus the enterprise agreement prevails as indicated in s 57 of the FWA. A modern award can be described as documentation which provides the least possible terms of engagement above the National employment standards. Enterprise agreement on the other hand sets out the least possible terms and conditions of employment below the National employment standards (Oliver, 2010). Moreover, modern awards are applicable to all workers under the national workplace association schemes. Therefore, Modern awards are simply occupational based frameworks that are only applicable to both employers and employees who conduct their work under unions or other work groups. This simply shows that some employees such as senior managers among other higher income employees might not be covered by a modern award regardless of the policy being applied to the industry in which they work. Therefore, to some extent, the modern award never provides an explicit outline for all employees and employers.

Fontana, et al., (2015) indicates that if a business is covered by a registered agreement, it is often that the conditions of a modern award are never applicable or relevant altogether. However, if the bases of payment rates in an enterprise agreement are much lower than those provided under the modern award, the modern award might be applicable. However, this does not guarantee that all employees would be protected by the award. When an employee is not protected by an award, they are often considered to be award and agreement free. In such circumstances, the national minimum wage and the National employment standards are often used to set the minimum terms of employment. This clearly shows that the agreement will always replace awards as it is designed by both the employer and the employee and not the industrial relations commission (Penning, 2009).

 The establishment of the modern award back in early 2010 imposed new and challenging employment conditions on many employers. The idea is that most of the conditions are not suited for most business. Therefore, the majority of employer perspective consider that enterprise agreement as a better way of addressing these problems, as it suitably replaces the relevant modern award (Creighton, & Forsyth, 2012). 

The introduction of the enterprise agreement by an employer as a centrepiece of industrial relations has placed significant emphasis on employers and employees handling the arrangement of their workplace and making decisions that are solely suitable for their own interests. The foundational premise is that Enterprise agreement reduces interference by the state thus improving the productivity of employees. Breyer,& Breyer, (2009) believes that arrangements on wages and other terms of employment would assist a properly functioning market and significant employment growth. That being said, most employers have the belief that reducing the union power and implementing enterprise agreement significantly helps to grow a properly functioning market. This makes it’s clear that it is only through a simplified agreement-making process, can the full potential for employee productivity can be realised.

The frameworks of enterprise agreement will drive future organisational growth and employee productivity, and increase further living standards. The clearest expressions by Forsyth, & Stewart, (2009) claim that agreement making between employee and the employer, often lift productivity particularly if it is tailored for specific employees .He further indicates that encouraging employee contribution increases the use of individual workplace desires which in turn generate a single largest productivity boost compared to the ideas proposed under the concept of a modern award (Chapman, 2009).

 Under the FWA terms, a valid majority must be secured either through a balloting system or other ways that can be used to obtain employee approval. Informed consent necessitate that employee has access to all the provisions of the agreement at least 14 days prior to making the agreement. In this way, the employees are provided with ample time to make decisions or propose amendments before making the agreement. This also ensures that they have received proper explanations regarding the provisions of the agreement prior to signing the agreement. Therefore, such justifications must always be right considering the specific conditions and the need of the workers (Bray, & Macneil, 2011). However, Modern awards never define what a better explanation involves. Therefore, most employers feel that it does not clarify whether any explanations requested by the employees necessitate the employer to compare the contract with the award, or top elaborate how it relates with other provisions within the same industry. Recent studies by the Centre for Employment and Labour Relations and regulation surveyed the efficiency of various legal statutes in protecting the workers interests in the enterprise agreement process. The study shows that the Enterprise agreement has very little gaps particularly to the provisions of informed consent by employees. Most of the statutory provisions carry ample information regarding the drawbacks of a contract, and how the conditions set out in the agreement are related to an award .Therefore, in most statutory declarations its often clarified that the employer has even gone beyond providing the employee with an opportunity to ask questions regarding the agreement and further taking positive actions to elaborate the consequences of the terms (Pocock, Charlesworth, & Chapman, 2013).  However, other evidence from the study cast suspicion on the sufficiency of banking on statutory assertions supplementary to the certification of the agreement. This is because statutory declaration in most cases is prepared in standard form both by establishments and unions, even across different businesses. This implies that there are instances that valid majority and cognisant consent are overlooked. However tailor-made similar propositions from both the employer and the union are often prepared on the basis of the key regulatory environment, an issue that makes it’s still a better option (Oliver, 2016).

Overall the rations for negotiating in good faith often allows workers including managers and high-income earners to have the ability to negotiate if they pick the same. This to some degree redresses the power disparity that often exists between an employer and the employee and has further helped in enabling negotiations. Since the introduction of enterprise agreement decisions under section 228 of the Fair Work Act of 2009 (Cth), much has been done to explain the restrictions under the existing provisions (Heron, & Charlesworth, 2012). A recent instance involved the APESMA v Peabody Energy Coal Ltd. (‘Peabody’). The corporation had initially declined to make an enterprise agreement favouring either the workers remained in modern award terms or individual contracts. Following an application by the majority to provide a reviewed proposal which considered all matters raised by the employees and the company, the employer conceded and employer’s matters were put into consideration. This particular matter follows the decision by the Coal Pty Ltd v APESMA. In this case, the court determined that the bargaining representative might be held accountable in case they fell short of the good faith in negotiating the requirements of the relevant parties (Cooper, 2010).The judges considered this as a failure to put forward the proposals or counter-proposals terms by the relevant parties. However, the current laws do not necessitate the negotiating parties to actually come into an agreement which according to Oliver, (2012) remains as a flaw in the enterprise agreement.

It is pretty evident that through the modern award method, most workers are trading away other non-financial rights which don’t even seem to be pertinent by authorities in the negotiation process. These factors might themselves be classified into two factions. One part involves the quality of working conditions by employees. The negotiation process needs both parties to apply their considerations “on balance”. Therefore, in such a situation ‘on balance’ might make it challenging to circumvent the assumption that many workers are struggling with a major decline in the quality of their working condition in multiple aspects. For instance many have been suffering the loss of explicitly defined weeks, being forced to work on unbalanced schedules with constant disruptions to personal life (Peetz, & Preston, 2009). As a result, many workers are denied the opportunity to decide when they want to be off work. Many do not have authority over the type of job responsibilities and functions as much of the choices have been given away in modern award arrangements.

The second part involves workplace power. Award often made on unions have given a foundation for union-based authorities with businesses. In shifting to union based frameworks or employment groups systems, employees are in most cases being stripped off their defensive power to protest against administrative discretion. This implies that not only is the Modern award process changing what were considered as employment civil rights into matters of management discretion , but further eliminating the countervailing powers which might interfere with the exercise of discretion. Most Modern award agreements tend to extend the powers of the employer on matters such as work schedule, the allocation of job obligations among others, without the need to consult with the employees (Stewart, 2013). Most consider that such a shift of power may be termed as a ‘non-union premium’ as part of the negotiation process. However, as discussed earlier, these matters are considered as irrelevant by the established order.

Conclusion

To summarise, an Enterprise agreement has brought to both employees and employers much greater flexibility in organising and managing work. While various studies still show that there are still areas that need change, it also in the cases to consider it as better often as compared to modern award. Moreover, the enterprise agreement has protection incorporated into its processes, often created to protect employee and ensure that their interests are put into consideration. If you are an employee in an organisation that is considering implementing an enterprise agreement, it is important to first ensure that you understand the terms and conditions. This would ensure that the overall negotiations leave you “better off overall.” Enterprise agreement is key to the creation of more favourable conditions and has a fundamental role in the future of both employees and employers. However, as discussed earlier, there still a number of limitations in the existing model. One of the proposals is that the Enterprise agreement ought to only happen between one employer and their employees. All the deliberations should not be reflected in other enterprises, even within the same industry. Even  though the process  of  reaching an agreement  might be  long , the  outcome of   enterprise  agreement  can be  more beneficial   to  employees , especially  in circumstances  that  might not always  be  foreseeable  when applying Modern award processes. However , the  observations that  have been made in this paper  should  not  conceal  the  significance of a larger-order issue  intrinsic  in the development  of  much better  labour  laws in Australia .

Bibliography

Fontana, R. P., Milligan, C., Littlejohn, A., & Margaryan, A. (2015). Measuring self‐regulated learning in the workplace. International Journal of Training and Development, 19(1), 32-52.

 Breyer, S. G., & Breyer, S. G. (2009). Regulation and its Reform. Harvard University Press.

 Forsyth, A., & Stewart, A. (Eds.). (2009). Fair work: The new workplace laws and the work choices legacy. Federation Press.

 Oliver, D. (2012). An examination of award wages among Australian apprentices and trainees. Australian Bulletin of Labour, 38(2), 158.

 Stewart, A. (2013). Stewart’s guide to employment law. Federation Press.

 Cooper, R. (2010). The ‘new’industrial relations and international economic crisis: Australia in 2009. Journal of Industrial Relations, 52(3), 261-274.

 Heron, A., & Charlesworth, S. (2012). Working time and managing care under Labor: whose flexibility?. Australian Bulletin of Labour, 38(3), 214.

 Oliver, D. (2016). Wage determination in Australia: The impact of qualifications, awards and enterprise agreements. Journal of Industrial Relations, 58(1), 69-92.

 Peetz, D., & Preston, A. (2009). Individual contracting, collective bargaining and wages in Australia. Industrial Relations Journal, 40(5), 444-461.

 Oliver, D. (2010). Modern awards and skill development through apprenticeships and traineeships.

 Bray, M., & Macneil, J. (2011). Individualism, collectivism, and the case of awards in Australia. Journal of Industrial Relations, 53(2), 149-167.

 Oliver, D., & Walpole, K. (2015). Missing links: connections between qualifications and job roles in awards. Labour & Industry: a journal of the social and economic relations of work, 25(2), 100-117.

 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.

 Penning, S. (2009). Employment Law: Modern Awards-Simplifying the System. Keeping good companies, 61(10), 609.

 Creighton, B., & Forsyth, A. (Eds.). (2012). Rediscovering Collective Bargaining: Australia’s Fair Work Act in International Perspective. Routledge.

 Chapman, A. (2009). Protections in Relation to Dismissal: From the Workplace Relations Act to the Fair Work Act. UNSWLJ, 32, 746.