Negotiating agreements
Types of formal agreements
What to consider before negotiating
Making state agreements
Employers seeking to introduce new policies may wish to consider establishing an agreement for their workplace or for a particular employee.
Types of formal agreement
There are five types of formal agreements:
- State certified agreements
- Queensland Workplace Agreements (QWAs) (state)
- Federal collective agreements
- Individual Transitional Employment Agreements (ITEAs)
- Australian Workplace Agreements (AWAs) (federal)
State certified agreements
State certified agreements are collective agreements negotiated between employers and employees or employers and union(s) and are required to be certified by the Queensland Industrial Relations Commission.
Queensland Workplace Agreements
Queensland Workplace Agreements (QWAs) are made directly between employers and their employees on an individual basis and approved by the Queensland Industrial Relations Commission.
Federal collective agreements
Federal collective agreements include employee collective agreements, union collective agreements, multiple-business agreements, union greenfield agreements and employer greenfield agreements. These agreements, apart from Greenfield agreements which take effect when lodged, take effect (for existing employees) when approved by the Workplace Authority.
Individual Transitional Employment Agreements (ITEAs)
Individual Transitional Employment Agreements (ITEAs) are individual agreements between an employer and an employee but can not have an expiry date later than 31 December 2009. These agreements operate from when they are lodged with the Workplace Authority for new employees and from when approved for existing employees.
Australian Workplace Agreements
Australian Workplace Agreements (AWAs) (federal) were made directly between employers and their employees either on an individual or collective basis, and were approved by the Employment Advocate. These can no longer be made or varied but may still be operative.
Before negotiating an agreement you should consider
Who - which employees will be covered by the agreement? Are these employees covered by an award or not? If employees are covered by an award, the employer needs to check the relevant provisions under the award before making an agreement. See provisions for award and non-award employees for further information
What - what will need to go into the agreement? Does it pass the no disadvantage test?
When - is it good timing to be entering into enterprise bargaining? Do your employees need to be educated on new work-life balance policies first?
Where - do different regions need different agreements to match cultural differences?
Why - do your new work-life policies necessitate an agreement?
How – do you need to seek industrial advice?
Making state agreements
The following information is intended to provide a guide only for employers who want to make an agreement under the state system. There are two types of agreements that can be made:
State certified agreements
The following information is a guide only and should not be solely relied upon when making a certified agreement. For more detailed information please refer to Chapter 6 of the Industrial Relations Act 1999 (PDF, 1.9 MB) or seek industrial advice.
What can be included in a certified agreement?
How is a certified agreement made?
How does a certified agreement become legally binding?
The actual content and scope of a certified agreement is up to the negotiating parties to decide. However, it should focus on work arrangements which cater for the needs of both the business and the employees. In this regard, certified agreements need not be limited to traditional industrial relations arrangements.
In developing a certified agreement, the parties are responsible for ensuring the content of the agreement meets all the legal requirements. The Act requires that all certified agreements must include:
- a dispute-resolution procedure; and
- a nominal expiry date for the agreement (a maximum of three years after the date from which the agreement commences to operate)
In addition to this, the Act requires that a certified agreement must not include:
- discriminatory provisions; or
- provisions inconsistent with the Act’s provisions relating to equal remuneration for work of equal or comparable value, dismissals, freedom of association, or orders or injunctions by the Commission in relation to these matters.
How is a certified agreement made?
The actual negotiations to make a single employer or multi employer certified agreement can take place between:
- the employer and the relevant unions;
- the employer, the employees and the unions requested to negotiate on behalf of member employees;
- the employer and the employees; or
- the employer and a representative employee committee
The proposer of the agreement must give written advice of their intention to begin negotiations to all other proposed parties to the agreement. This must be done at least 14 days before it is proposed to begin negotiations.
Employers must take reasonable steps to ensure that employees understand the terms and conditions of any proposed agreement that will cover their employment before they are asked to approve it. These steps include:
- all employees who will be covered by the agreement must be given a copy of the proposed agreement, or ready access to a copy, at least 14 days before they are asked to approve it;
- the terms of the agreement (including dispute resolution procedures) and their effect must be explained to all employees who will be covered by the agreement; and
- if the agreement is being made directly with employees, they must be informed that they can have their union represent them in negotiations with the employer. If an employee takes up this option the employer must give the union a reasonable opportunity to represent the employee.
The Act requires that the explanation of the agreement is made in a way that is appropriate to employees’ particular circumstances and needs. There are four groups identified in the Act for special consideration – women, persons from a non-English speaking background, young persons and persons with limited literacy and numeracy skills. For example, it would be inappropriate to give only a written explanation of the terms of the agreement to an illiterate person.
A ‘valid majority’ of employees must approve the agreement. An employer must first give all employees whose employment will be covered by the proposed agreement a reasonable opportunity to decide on whether or not they approve it. To obtain a ‘valid majority’, a majority of employees who cast a valid vote must vote in favour of approval of the agreement.
When negotiating the terms of a proposed agreement, the proposed parties to the agreement must negotiate in good faith. Examples of good faith in negotiating include:
- agreeing to meet at reasonable times proposed by another party
- attending meetings that the party had agreed to attend
- complying with negotiation procedures agreed to by the parties
To be legally binding, certified agreements must be certified by the Queensland Industrial Relations Commission (QIRC) . To be certified the agreement must also satisfy particular requirements. For example, it must:
- have been negotiated/made in accordance with the specific requirements under Chapter 6 in the Industrial Relations Act 1999;
- have the genuine approval of a ‘valid majority’ of the employees to be covered by the agreement; and
- pass the no-disadvantage test (i.e. a comparison of the entitlements and protections for employees under the agreement with those under the relevant award).
Once certified, agreements are binding on all the parties, i.e. the employer, existing employees and employees employed after the agreement is certified as well as any unions involved.
Employers can obtain further information on negotiating a certified agreement by contacting an Employer association. Employees can obtain further information by contacting their union.
Queensland Workplace Agreements (QWA)
The following information is a guide only and should not be solely relied upon when making a Queensland Workplace Agreement. For more detailed information please refer to Chapter 6 of the Industrial Relations Act 1999 or seek industrial advice.
What can be included in a Queensland Workplace Agreement?
How is a Queensland Workplace Agreement made?
Getting a Queensland Workplace Agreement approved
A Queensland Workplace Agreement may cover anything relating to the employees’ work (eg. wages, leave, hours of work, training).
A Queensland Workplace Agreement must include a procedure for settling any disputes that might arise while the agreement is operating. This ‘dispute resolution’ procedure will set out the steps the employee and employer should follow to resolve problems or issues in the workplace.
A Queensland Workplace Agreement must include matters about not discriminating as provided in the legislation. If it doesn’t it will be deemed to include them.
A Queensland Workplace Agreement must state the length of time it will operate. This can be a maximum of three years.
A Queensland Workplace Agreement must not include anything that stops you from telling people what is in the agreement.
How is a Queensland Workplace Agreement made?A Queensland Workplace Agreement may be negotiated directly between the employer and employee. Both parties may also appoint a bargaining agent to be involved in the negotiations.
A Queensland Workplace Agreement can only be made with an employee who is 18 years of age or older.
When making a Queensland Workplace Agreement, the employer must:
- give a copy of the proposed agreement to the employee
- give the employee sufficient time to consider the agreement before they are asked to sign it (at least 14 days for employees already working in the business, or at least 5 days for new employees)
- outline the terms and conditions of the agreement
- explain how the agreement will affect employees’ wages and working conditions
- give employees a copy of an information statement (employees already working in the business should receive the statement at least 14 days before they sign the agreement, and new employees should receive it at least 5 days before)
When explaining the working arrangements in a Queensland Workplace Agreement, the employer must consider the needs and circumstances of the employee. Some people may need particular consideration or assistance (for example, young people, women, people from non-English-speaking backgrounds and people with limited literacy or numeracy skills).
An employer must not act unfairly or unreasonable by failing to offer a Queensland Workplace Agreement in the same terms to all employees who are doing the same work.
The employer can not dismiss an employee for refusing to make a Queensland Workplace Agreement.
Getting a Queensland Workplace Agreement approvedA copy of the Queensland Workplace Agreement must be filed with the Industrial Registrar or a District Industrial Inspector within 14 days after the date when the employer and employee signed it.
If the employer has provided all the necessary information with the Queensland Workplace Agreement, he or she will receive a filing receipt. The employee is entitled to a copy of the receipt.
Filing a Queensland Workplace Agreement does not mean that it has been approved. After being filed, the agreement is given to the Queensland Industrial Relations Commission (QIRC) (the Commission) to be approved.
Before approving a Queensland Workplace Agreement, the Commission must ensure it meets all legal requirements. A Queensland workplace agreement must:
- include a dispute-settling procedure
- not be discriminatory
- not include anything that stops the employee or employer from telling what is in the agreement
- be freely entered into – the employee cannot be forced to make a Queensland Workplace Agreement; and
- pass the no-disadvantage test
The purpose of the no-disadvantage test is to make sure that the employee is not worse off under the Queensland Workplace Agreement, that is, the employment conditions (wages and any other arrangements) the employee would have under the Queensland Workplace Agreement are not less than the employment conditions under an award or certified agreement under which the employee would otherwise be employed. The Commission can also take into account employment conditions under the Industrial Relations Act 1999. If the employee is not working under and award or agreement, the Commission will nominate an award for the purpose of applying the no-disadvantage test.
Employers can obtain further information on negotiating a Queensland Workplace Agreement by contacting an employer association. Employees can obtain further information by contacting their union.
Last updated 21 July 2009
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