THE SILENT REVIEW_SPRING EDITION 2021_WEB

incorporated by reference in the agreement. The employer
must tell the employees the time and place where the vote
will occur, and the method that the vote will take place –
either by ballot or an electronic method. The time between
receiving the proposed agreement and the start of the
voting process is 7 days. The employer must not knowingly,
or recklessly, make a false or misleading representation
in any document that the employees are given a copy
of, and they must take all reasonable steps to ensure the
employees have the opportunity to have the terms of the
agreement and their effects, explained to them.
It's critically important
to note that if you don't
understand the effects
of any clause, part,
or requirement of the
proposed agreement,
you have the right to
have it explained to
you by your employer.
If the employees that
will be covered by the
agreement have been asked to approve it, the employees
have voted and a majority of the employees approve it,
then the agreement is made. A bargaining representative
(either employer or union) must apply to the Fair Work
Commission for approval of the agreement within 14 days.
If the employees vote no and reject the agreement, then
the agreement is not made.
When does the Fair Work Commission HAVE to
approve an EA?
The Fair Work Commission must be satisfied that:
• The employees have genuinely agreed to the agreement
• The employers have genuinely agreed to the agreement
• The agreement doesn't include any unlawful terms
• The agreement has terms on an expiry date (which
must not be more than 4 years) and has a term on
settling disputes
• The agreement doesn't contravene the NES (Remember
from the last post? The 11 minimum employment
standards in Australia), and,
EBA passes this test at the time of the application
for approval of the agreement, however there are limited
instances where the FWC can approve an agreement
when it doesn’t pass the BOOT.
What is the modern award?
The modern award, together with the
NES – provide a fair
and relevant minimum safety net of terms and conditions,
relevant to specific jobs. If we did not have our EBA, we
would be covered under the Aircraft Cabin Crew Award
2020.
As an example of the minimum safety net, the Aircraft
Cabin Crew Award 2020 provides for 5 weeks of annual
leave, whereas our EBA provides for 6; modern award
crew must replace their uniforms at their own cost apart
from fair wear and tear, whilst Qantas pays for ours;
and modern award crew are only entitled to 8 days off
per 28 day period, whereas we are entitled to 9 in 28 days.
Very importantly, if Qantas threatens to terminate our
EBA and return to the modern award, the maximum length
of a single sector duty is 18 hours (unplanned to 20) –
which rules out Sunrise flights.
Can an EBA be changed or even cancelled once it is
in place?
Yes. If both parties of the agreement decide to change it,
they can jointly apply to make a variation to the agreement.
However, the change must be approved by the FWC. An
employer can request employees to approve a proposed
variation, done by voting. The FWC may vary an enterprise
agreement to remove an ambiguity or uncertainty on
application by just one applicant – a single employee,
even. And the Australian Human Rights Commission can
apply to vary an enterprise agreement, too.
Similarly as both
parties may agree
to change the EBA,
both parties may
agree to terminate
an agreement.
The termination
has no effect until
approved by the FWC.
• The agreement passes the better off overall test (BOOT).
What is the BOOT?
The Better Off Overall Test (BOOT) is a satisfaction by
the Fair Work Commission (FWC) that each employee
would be better off by working under the conditions of
the proposed EBA, instead of the relevant modern award
applied to them. The commission must be satisfied that the
So, those are the basics of the enterprise agreement
system we have in Australia. If you have any more
questions, please don’t hesitate to contact the office.
SPRING EDITION 2021 21