Awards and agreements

Contributed by CatherineRusso and current to 27 July 2018

National system - Modern awards and enterprise agreements

Modern awards

Modern awards establish a safety net of terms and conditions of employment that are broader than the NES. Most modern awards are industry-based; however some are occupation-based. Currently there are 122 awards that cover a number of industries and occupations. There is not an applicable award for every Australian employer.

A list of the current modern awards can be accessed at: https://www.fwc.gov.au/awards-and-agreements/awards/modern-awards/modern-awards-list

Each modern award includes terms dealing with minimum wages and skills-based pay scales for employees covered by the award. The minimum wages in modern awards are adjusted by the Expert Panel of the Fair Work Commission (“FWC”) for annual wage reviews each year.

Each modern award will include information about who is covered by the Award, this information can be found in the coverage clause and list of job classifications which are included in each award.

Where an employer and employees have negotiated an enterprise agreement (see section ‘Enterprise agreements’ below), any applicable modern award will cease to apply to those employees.

Modern Awards – recent development

Every 4 years, the FWC must conduct a review of all modern awards in accordance with section 156 of the FW Act.

As part of the review, the Fair Work Commission has recently updated all industry and occupation awards to include a new model clause providing an entitlement to family and domestic violence leave. This new clause applies from the first full pay period on or after 1 August 2018.

All employees (including casual employees) covered by an award with the new clause are entitled to 5 days unpaid family and domestic violence leave each year.

Enterprise agreements

Enterprise agreements are collective agreements made by employers and their employees under the FW Act which set out the minimum employment conditions which apply to any employee to whom the agreement is applicable.

If an enterprise agreement applies, any applicable modern award will not apply, however:

• the terms and conditions of employment provided for in the enterprise agreement must be ‘better off overall’ than the terms and conditions of any applicable modern award (that is, modern award terms and conditions can be traded off or modified as long as the total remuneration and/or benefits received by employees under the enterprise agreement leaves them better off overall); and
• the NES will still apply (that is, the terms of the NES cannot be modified or traded off).

All enterprise agreements can operate alongside common law contracts of employment; however a contract of employment can only supplement, not undercut, enterprise agreement terms and conditions.

State system - awards and agreements

Awards

State Awards, like modern awards, usually contain detailed conditions of employment.

In the state system, an award is made by the WAIRC. These Awards apply throughout Western Australia, (unless the Award says otherwise) to the unions, classifications of employees and employers named in the Awards. Awards usually relate to an occupation or industry, or group of industries.

A full list of the Awards can be accessed at: https://www.wairc.wa.gov.au/index.php/en/FullAwards

Industrial agreements

Employees and employers may make industrial agreements covering the terms and conditions of work in a single enterprise, and apply to have the agreement registered by the WAIRC. Copies of current industrial agreements can be found on the WAIRC website.

While the industrial agreement is in operation, parties will not be covered by any State Award that might ordinarily have applied. Although, often industrial agreements will incorporate Award provisions.

Industrial agreements operate for the period of time set out in the agreement, but the agreement will continue to operate after it has expired until parties retire from the agreement or until a new agreement is made.