Proposal for Enterprise Bargaining Agreement (EBA)

Transcription

1 Level 1, 188 Montague Rd West End Q 4010 p: national: e: info@irgroup.com.au w: Proposal for Enterprise Bargaining Agreement (EBA) Introduction McIlroy IR Group proposes to develop and negotiate an EBA for Herston Lodge (Part A) which if successful can be used as a template EBA for other Supported Accommodation Provider (SAP) employers within the SAP industry (Part B). Background We refer to our advice dated 12 October 2014 in which we recommended that a test case SAP employer should develop and negotiate an EBA which is underpinned by both the: Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100] (SACS Modern Award) for employees who provide support services to residents ( e.g. personal carer); and Hospitality Industry (General) Award 2010 [MA000009] (Hospitality Modern Award) for all other domestic and ancillary employees that do not provide direct support services to residents. Herston Lodge has agreed to be the test case for this purpose. PART A EBA FOR HERSTON LODGE Scope Preliminary Step - Preparing the draft EBA (and conducting a benchmarking audit) We have conducted a historical search of the Fair Work Commission archives for EBA s in the same industry. Of particular note, our search revealed an EBA that was lodged by Fairhaven in 2013 (Fairhaven EBA). The Fairhaven EBA is underpinned by the Hospitality Modern Award but provides classifications for domestic work only. The EBA makes no reference to the provision of personal support to residents. As many of the SAP employers engage employees who provide some level of personal support services to residents it will be necessary to classify those employees under the SACS Modern Award for the purpose of working out their entitlements in the EBA. Page 1 of 6 Proposal and quotation to SAPA 11 November 2014

2 Prior to drafting the EBA, we will need to conduct a benchmarking audit of all Herston Lodge employees to ensure they are correctly classified. Once we have confirmed the correct classification for each of the employees under the Hospitality Modern Award and SACS Modern Award, we will be able to prepare draft classification clauses for the EBA which are tailored to Herston Lodge and underpinned by the relevant Modern Award classification. As mentioned above, the draft EBA will be underpinned by the Hospitality Modern Award for domestic and ancillary staff (similar to the Fairhaven EBA) and will include additional classifications underpinned by the SACS Modern Award for employees who provide support services to residents. We understand that some SAP employees have multiple duties which may alternate between domestic and support. Such arrangements will be identified during the benchmarking audit and we will prepare draft classifications to reflect these arrangements. Once the EBA has been drafted, we will initiate bargaining. The Fair Work Act 2009 (Cth) (Act) sets out a process which must be followed in order to make an EBA. The process is not particularly complex however it is necessary to strictly comply with each step of the process. If any one step has not been fully complied with the EBA may not be approved by Fair Work Australia (FWA), or could later be found to be void. The steps required to be undertaken under the Act are outlined in the attached flow chart. Step 1 Give notice of Representational Rights. Within 14 days of initiating bargaining, we must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each Herston Lodge employee who will be covered by the EBA. This is done by providing all employees with a copy of a Notice of Representational Rights (Notice). We will prepare the Notice to provide to each employee either personally, by pre-paid mail, by , by placing on a noticeboard in the workplace. The Notice should be signed by each employee to acknowledge receipt (e.g. using the format of an attendance sheet). That way there is a record that Herston Lodge has complied with this requirement. Please note, the effect of the Notice is to inform employees that they have a right to be represented in the negotiation of the proposed EBA. If any one employee is a union member, their union automatically becomes their bargaining representative (BR) for the EBA. Alternatively, each employee may nominate any other person to be their BR. If any employees do have a BR, Herston Lodge will then be required to bargain with those BRs. Also, a vote for the EBA cannot be held until at least 21 clear days after the Notice has been given to the last employee. The 21 days must exclude the day the Notice is given, and also exclude the day of the vote. So, if we issue the Notice on day 1, we cannot hold the vote until day 23. Step 2 Comply with good faith bargaining obligations Herston Lodge (and all other BRs) must comply with the requirements to bargain in good faith. Page 2 of 6 Proposal and quotation to SAPA 11 November 2014

3 We will act as the Employers BR for Herston Lodge but it is also important that at least one of the Directors attends the bargaining meetings. For your information, the obligation to bargain in good faith with BRs applies from the time that Herston Lodge gives the Notice up until the EBA commences operation. It is not possible to provide you with a strict time frame for the bargaining process as it will depend on the circumstances. The good faith requirements require that parties: attend and participate in meetings at reasonable times; disclose relevant information (other than commercially sensitive information) in a timely manner (if requested); respond to proposals made by other BRs for the EBA in a timely manner; give genuine consideration to the proposals of other BRs, and give reasons for responses to those proposals; refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining; and recognise and bargain with other BRs for the EBA. Good faith bargaining requirements do not mean that BRs need to: make concessions to employee claims; or reach an agreement on terms to be included in an EBA. Step 3 Commence 7 day access period To commence the 7 day access period, we must provide employees with: a notice informing of the time and place the vote for the EBA will occur and the voting method that will be used (e.g. secret ballot); and a copy of the proposed EBA, and any other material incorporated by reference in the EBA. These documents must be given to all employees employed at the time and who will be covered by the EBA. If new employees are employed during the access period, they must be given copies of these documents as soon as practicable after engagement. The 7 day access period must be commenced at least 7 clear days before the vote of employees. So, if the Notice is given on day 1, and the vote is to occur on day 23, then the access period must commence no later than day 15. We will prepare the notice to accompany the proposed EBA and facilitate the access period. Step 4 Explain EBA to employees during access period We must take reasonable steps to ensure that during the access period: the terms of the EBA, and the effect of those terms, are explained to employees; and the explanation is provided in an appropriate manner taking into account the particular circumstances of the employees. Page 3 of 6 Proposal and quotation to SAPA 11 November 2014

4 If the employees do not have BRs appointed, we will need to take extra care to comply with this requirement. It can be done by, for example, meeting with employees in groups and stepping them through the terms of the EBA and their effect. Step 5 Seek approval by a vote We must request that employees approve the EBA by voting at the end of the 7 day access period. This can be done by holding a secret ballot, where each employee is given a ballot paper and asked to answer yes or no as to whether they approve the EBA. They can then place the ballot paper into a box to be counted. It is a good idea to make a note of each employee who is given a ballot paper so that we can keep a record of how many employees voted. Please note that as set out above, the vote cannot until 21 clear days after the Notice has been given. Step 6 Signing of EA Once the EBA has been approved by employees, it must be signed. There are specific signing requirements for the EBA including: the EBA must be signed by the employer and at least one representative of employees who will be covered by the EBA. Employees can select one or more representatives to sign the EBA on their behalf; and each person who signs the EBA must provide the following details: o their full name; o their address; and o an explanation of their authority to sign the EBA (e.g. for employees, they could state nominated representative of employees, and for Herston Lodge management, state the relevant position). Step 7 - Apply to FWA for approval of the EA We must lodge an application with FWA for the EBA to be approved within 14 days of approval by employees. This application must be accompanied by an Employer s Declaration and a signed copy of the EBA. Again, this application must be made within 14 days or FWA may refuse to approve the EBA. We can prepare a better off overall test assessment table which compares the EBA with the Hospitality Modern Award and SACS Modern Award to attach to the application. The table will show that the EBA is better off overall. Other requirements relating to approval A general requirement that Herston Lodge should bear in mind through the above process is that FWA must be satisfied is that the EBA has been genuinely agreed to by the employees covered by the EBA. An EBA will have been genuinely agreed to, where: Page 4 of 6 Proposal and quotation to SAPA 11 November 2014

5 the employer has complied with access period pre-approval steps; the employer has complied with the requirement to request that employees approve/vote on the EBA 21 days after the notice of representational rights has been issued; the employer has complied with other relevant sections of the Act; and there are no other reasonable grounds for believing that the EBA has not been genuinely agreed to by (e.g. no misleading information about the EBA, no duress to vote for the EBA etc.). There are also a number of EBA content rules that deal with what you can and cannot include in an EBA. These must be complied with. Costs & timeline We estimate this EBA process will take approximately hours to complete at our SAPA discount member rate of $ per hr (+ GST). It is not possible to provide an accurate timeline as the bargaining process can vary significantly depending on the circumstances. For instance, if there is a bargaining dispute which cannot be resolved between the BRs, we may need to apply to the Fair Work Commission for assistance in resolving the dispute which will delay the completion of this step. Or should the Unions become involved this will impact significantly on how streamlined the process could be. However, the following is an estimated timeline (business days) based on a straight forward process: Preliminary Step completed by day 10. This estimate is subject to vary depending on the level of complexity which arises as a result of the benchmarking audit (e.g. this step will take longer to complete if the employees are not currently correctly classified under the correct Modern Award and will also be impacted by the number of staff, clarity of roster arrangements, shifts, sleep-overs and whether clear position descriptions are available for each position). Step 1 completed by day 11. Step 2 as mentioned above, we are unable to provide an accurate timeline for this step. However, for the purpose of providing you with a guide, we estimate that this step will be completed by approximately day 21. Step 3 and 4 From day 22 to day 29. Step 5 and 6 30 Step 7 must be completed before day 44. Note if wage increases are imminent it is strongly recommended that such increases are not passed on to employees until such time as this bargaining process is finalised and wage increases can be passed on as a part of the EBA process. An EBA that has an outcome of increased wage rates (however small) have a far greater prospect of a streamlined process. Page 5 of 6 Proposal and quotation to SAPA 11 November 2014

6 PART B ROLL OUT FOR OTHER SAP EMPLOYERS Scope If the Herston Lodge EBA under Part A is approved by FWA, Part B should be relatively straight forward. All of the above steps will need to be repeated for each of the SAP employers who wish to make an EBA. However, as the drafting of the EBA document itself will have already been completed the Preliminary Step will be significantly reduced as we will be able to rely on the Herston Lodge EBA document, position descriptions etc. We will still need to complete a benchmarking audit for each of the SAP employers employees which as mentioned above may vary the estimated timeline depending on the level of complexity. This step is necessary in order to ensure that the EBA accurately classifies the employees. If this step is not completed, it is likely that it will result in a drawn out bargaining process. Further, in order to avoid breaching the pattern bargaining provisions of the Act, we must ensure that we genuinely negotiate the terms and conditions of the proposed EBA with each group of employees at each location. It is not sufficient to simply present the employees with a copy of the proposed EBA and request that it be signed. Costs & timeline We estimate this EBA process will take approximately 8 10* hours to complete at our SAPA discount member rate of $ per hr (+ GST). The timeline will be as set out above under Part A however, the Preliminary Step will be reduced. I look forward to your consideration of this proposal, Damien. Gwen McIlroy Managing Director McIlroy IR Group * This estimate is subject to the following information being provided to us at the preliminary step - Benchmarking Audit In order to conduct the benchmarking audit we will require the following information: Organisational chart; Employee details filled out on an excel spreadsheet (provided by us); Current employees resumes which refer to work history, skills and qualifications; Current Employment Contracts, letters of offer etc; Position descriptions for each position; and Current rosters which includes: o Days and hours worked each week; o Shift start and finish times; and o Paid and unpaid break times. The above information will assist us in correctly classifying each of the employees. Page 6 of 6 Proposal and quotation to SAPA 11 November 2014