Paul Skene worked from 2010 to 2012 at WorkPac, an employment agent. It was paid pursuant to an enterprise agreement that included “loaded rates of pay,” with a higher “charged rate” for casual workers with occasional loads. Remarkably, his rolling chart was made available to him 12 months in advance and worked on a “7 days, 7 days off” at 12.5 hours per shift. His contract with WorkPac explained that his commitment was casual. After completing his employment, he applied for annual leave under the NES. In order to help the FWC carry out the better-judged overall test, the FWC requires a detailed comparison of how the agreement`s claims are more or less advantageous than the corresponding modern allocation. A recent development has been a requirement that the parties also indicate what is omitted and what is different from the modern allocation, since the FWC must take into account all attribution requests, even if the company does not currently operate in such a way that all claims are reinvigorated. Increasingly, we are seeing that employers are giving companies to put agreements above the line. However, a company cannot be used to “fix” a defect if it imposes financial disadvantage on a worker under the proposed agreement or if it results in substantial changes to the agreement. In 2019, the FWC has published a number of resources showing frequent errors in the content of agreements and ways to avoid them.
There is no simple solution when an employer submits the incorrect version of an enterprise agreement and the FWC agrees1. The employer must appeal the decision to approve the enterprise agreement, submit the agreement to another vote and re-request that the agreement be approved. If a job has a registered contract, the premium does not apply. However, among the other common defects that attract the attention of the FWC are exit clauses which, at the worker`s initiative, consider that the employment is terminated when a worker is absent for a prescribed number of days, and the lack of choice for overspending in the agreement. This last defect was of concern to the Full Bench in the last De Kmart call. Given the employer`s extensive casual work and the likelihood that its employees will have more than one job, Full Bench stated that “the choice of funds can be an advantage, so that the casual worker can remain smooth in a single super-nuleation fund, instead of having two or more resources resulting from different jobs , with all the inconvenience and additional management costs.” What constitutes a “minor” error depends on the relevant circumstances and the nature of the unmet requirement. For example, staff information on when and where the vote will take place and the voting method applied immediately after the start of the access period should, in most cases, be a “minor error,” particularly when the turnout indicates that all workers with the right to vote or a clear majority voted on the agreement. However, if this is the first agreement in the company, the negotiators are inexperienced and most workers are not English-speaking, it should not be a “minor mistake.”